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Terri S. v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

November 6, 2018

TERRI S., Plaintiff,
v.
NANCY A. BERRYHILL Deputy Commissioner for Operations, Social Security Administration, Defendant.

          REPORT AND RECOMMENDATION ON PLAINTIFF'S REQUEST FOR REMAND

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff limits her appeal of the Social Security Administration's denial of benefits to one issue: whether the administrative law judge erred by failing to provide any reasoning for her decision to use Plaintiff's chronological age category when Plaintiff's age was within the borderline range between two categories. If the ALJ had analyzed the category criteria and moved Plaintiff into the higher age category, Plaintiff likely would have been found disabled. Defendant responds that Plaintiff fails to show the ALJ misapplied the relevant factors, and argues that none of the factors favor moving Plaintiff up an age category, making any failure to articulate her consideration of them harmless. As discussed below, the Magistrate Judge finds that the ALJ erred by failing to explain her choice between the age categories, and this error requires remand because the record may favor using the older age category.

         II. Background

         Plaintiff first applied for supplemental security income in 2015, but the SSA denied her claim initially and upon review. The ALJ issued her decision denying benefits in July of 2017, and the SSA later adopted it. When the ALJ issued her decision, Plaintiff was roughly two months from turning 55. The SSA considers people between age 50 and 54 to be “closely approaching advanced age, ” and people 55 or older are considered to be of “advanced age.” 20 C.F.R. § 416.936(d), (e). ALJs apply different grid criteria at step five of the evaluation process based on these age categories.

         The ALJ followed the SSA's five-step evaluation process. See20 C.F.R. § 404.1520(a) (explaining the five-step process). At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since her application date. At step two, the ALJ found Plaintiff had several severe impairments: mild degenerative joint disease of the right knee, degenerative disc disease of the lumbar spine, non-obstructive coronary artery disease and cardiomyopathy, diverticulosis, history of hemorrhoidal banding and sphincterotomy, and obesity. At step three, the ALJ found Plaintiff's impairments did not meet or medically equal any of the impairment listings in 20 C.F.R. pt. 404, sub pt. P, app'x 1. Before moving on to step four, the ALJ determined Plaintiff's residual functional capacity:

[Plaintiff] has the residual functional capacity to perform light work as defined in 20 C.F.R. [§] 416.967(b) except she can lift, carry, push, or pull twenty pounds occasionally and ten pounds frequently. She can sit for one hour at a time and a total of six hours in the eight-hour workday. She can stand and/or walk for one hour at a time and a total of four hours in the eight-hour workday. She occasionally can climb stairs and ramps, balance, stoop, and crouch. She cannot kneel, crawl, or climb ladders, ropes, or scaffolds. She cannot tolerate exposure to extreme cold, extreme heat, wetness, fumes, odors, gases, poor ventilation, or workplace hazards, such as unprotected heights, and dangerous, moving machinery.

[Filing No. 9-2, at ECF pp. 21-22, R. at pp. 20-21.] The ALJ used this RFC finding to determine at step four that Plaintiff could not perform any past relevant work.

         At step five, the ALJ pointed out that Plaintiff was 52 when she applied for SSI, which put her in the “closely approaching advanced age” category. But the ALJ did not point out that Plaintiff was two months shy of turning 55 when she issued her decision. The ALJ noted that Plaintiff had at least a high school education and could communicate in English. Next, the ALJ found that transferability of job skills was immaterial because the Medical-Vocational Rules framework supported the conclusion that Plaintiff was not disabled irrespective of whether her job skills were transferable. Considering Plaintiff's age, education, work experience, RFC, and testimony from a vocational expert, the ALJ determined that there was a significant number of jobs in the national economy that Plaintiff could perform despite her limitations. The ALJ therefore concluded that Plaintiff was not disabled.

         III. Discussion

         The Court reviews the ALJ's decision to ensure it is supported by substantial evidence. 42 U.S.C. § 405(g). An ALJ's decision is not supported by substantial evidence if the Court cannot follow the ALJ's reasoning from the facts to her conclusion. Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). The Court does not substitute its own judgment for that of the ALJ by reweighing or re-deciding the facts. Powers v. Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000).

         Plaintiff argues the decision is not supported by substantial evidence because the ALJ failed to explain her decision to treat Plaintiff as someone closely approaching advanced age, rather than someone of advanced age. Plaintiff contends her age put her in a “borderline situation, ” which the SSA describes as being “within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that [the claimant is] disabled.” 20 C.F.R. § 416.963(b). In a borderline situation, ALJs “will not apply the age categories mechanically, ” and instead will “evaluat[e] the overall impact of all the factors of [a claimant's] case.” Id. At the time of the decision, Plaintiff's upcoming birthday put her roughly two months from being considered a person of advanced age, and under Grid Rule 202.06 for claimants of advanced age, Plaintiff's limitations likely met the standard for disability. Defendant does not contest that Plaintiff was in a borderline situation.

         In borderline situations, ALJs must provide reasoning for their decisions regarding under which age category to analyze the claimant's ability to work. Pittenger v. Berryhill, 2:17-cv-230, 2018 WL 4026291, at *6-7 (N.D. Ind. Aug. 23, 2018). In the absence of a ruling from the Seventh Circuit, the Pittenger court considered a circuit split, the Seventh Circuit's history of requiring sufficient discussion to permit meaningful review, and the consistency among district court decisions from within the Seventh Circuit. Id. at *7. The court concluded that, as with other elements of their decisions, ALJs must provide a logical bridge from the evidence to their conclusions regarding borderline situations. Id.

         The court in Ellsworth v. Colvin, 13-cv-31-JDP, 2014 WL 3907139, at *11 (W.D. Wis. Aug. 11, 2014), acknowledged that this articulation requirement goes farther than what is required by the interpretive manual ALJs rely on to make sense of the often less than clear regulations. The Hearings, Appeals and Litigation Law Manual (HALLEX) tells ALJs they should use a “sliding scale” approach, weighing how far the claimant is from the next age range against any additional “vocational adversities.” HALLEX II-5-3-2.[1] However, HALLEX expressly says that an ALJ “need not explain his or her use of the claimant's chronological age.” Id. Nonetheless, Seventh Circuit courts consistently require ALJs to provide a minimal articulation of their reasoning so courts may review whether the decisions comply with 20 C.F.R. § 416.963, which prohibits mechanical applications of age categories in borderline situations. Ellsworth, 2014 WL 3907139, at *11 (collecting cases). In both Pittenger and Ellsworth, the ALJs recognized that the claimant was in a borderline situation, but stated they decided to use the claimants' chronological age. Pittenger, 2018 WL 4026291, at *7; Ellsworth, 2014 WL 3907139, at *11. Both courts found this to be inadequate, and both listed examples of other Seventh Circuit courts that likewise found ...


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