Opinion
5:20-CV-00149-D
07-12-2021
Lescell Gregory, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Plaintiff Lescell Gregory challenges Administrative Law Judge (“ALJ”) Katherine D. Wisz's denial of his application for social security income. Gregory claims that ALJ Wisz erred in applying the Medical-Vocational Guidelines at step five. Both Gregory and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 19, 23.
After reviewing the parties' arguments, the court has determined that ALJ Wisz erred in her determination. The undersigned cannot deduce the reasons why she declined to place Gregory in an older age category. Because there was no explanation for this finding, the undersigned cannot determine whether substantial evidence supports her step five determination. The undersigned thus recommends that the court grant Gregory's motion, deny the Acting Commissioner's motion, and remand this matter to the Acting Commissioner for additional consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In February 2017, Gregory applied for disability benefits and supplemental security income. In both applications, he alleged a disability that began in October 2016. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Gregory appeared before ALJ Wisz for a hearing to determine whether he was entitled to benefits. ALJ Wisz determined Gregory had no right to benefits because he was not disabled. Tr. at 27-35.
ALJ Wisz found that Gregory's degenerative joint disease of the hips and knees, arthritis, abdominal adhesions resulting from multiple abdominal surgeries, and obesity were severe impairments. Tr. at 29. ALJ Wisz also found that Gregory's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 30.
ALJ Wisz then determined that Gregory had the residual functional capacity to perform sedentary work with other limitations. Id. Gregory needs the opportunity to adjust positions every 30 minutes, alternating between sitting, standing, and walking, without leaving work tasks. Id. He can occasionally climb ramps and stairs but should never climb ladders, ropes, or scaffolds. Id. Gregory can occasionally balance, kneel, and crawl. Id. But he can have no exposure to hazards. Id.
ALJ Wisz concluded that Gregory could not perform his past relevant work as a corrections officer or management trainee. Tr. at 33. But considering his age, education, work experience, and RFC, ALJ Wisz found that jobs existed in significant numbers in the national economy that Gregory could perform. Tr. at 34. These jobs include small parts assembler, document specialist, addresser, and call out operator. Tr. at 34.
But in August 2017, when Gregory changed age categories under the Medical-Vocational Guidelines, Rule 201.14 directed a finding that he was disabled based on his age, education, work experience, and RFC. Tr. at 34-35. Thus, ALJ Wisz found that Gregory was not disabled before August 2017, when he became disabled. Tr. at 35.
Because Gregory's Date Last Insured (“DLI”) was March 31, 2017, he had to establish an onset of disability before that time to qualify for disability benefits. Tr. at 27.
After unsuccessfully seeking review by the Appeals Council, Gregory commenced this action in April 2020. D.E. 1.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Acting Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Acting Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Acting Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry but shifts to the Acting Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
In May 2016, Gregory complained of abdominal pain from a complex abdominal wall reconstruction that he underwent several years earlier. Tr. at 31. He reported that his pain was chronic, and he had several emergency room visits for pain. Id. His current pain had been ongoing for two weeks, with no aggravating or alleviating factors. Id. Neither examination nor imaging studies revealed major findings. Id.
Three months later, Gregory again reported abdominal pain. Tr. at 31, 347. His pain was daily but intermittent, and rated as mild to moderate in severity. Tr. at 31. Dr. Scott Konopka, Gregory's treating provider, declined to prescribe narcotic pain medication. Id. Instead, he advised Gregory to use over the counter medication and avoid heavy lifting and strenuous activity. Id.
In April 2017, Dr. Satish K. Kumar performed a consultative examination. Tr. at 426. Gregory reported that he used a cane since his January 2016 abdominal surgery. Tr. at 384. Dr. Kumar found that Gregory could sit for 15-20 minutes, stand for 10-15 minutes, and walk about 20 feet with a cane. Id.
Eight months later, Gregory reported pain while walking, despite using a cane. Tr. at 415. He had an antalgic gait, and x-rays showed severe osteoarthritis in his left hip and right knee. Tr. at 415-16.
Gregory again complained of left hip pain several months later. Tr. at 413-14. X-rays revealed severe osteophytes and a complete loss of joint space. Id. And his bilateral knees showed moderate to severe osteoarthritis. Providers discussed future joint replacement with Gregory. Id.
Later that month, Gregory again sought treatment for hip pain. Tr. at 445. X-rays revealed degenerative changes in his hips, with the left worse than the right, as well as degenerative changes in his lumbar spine. Tr. at 452. Gregory started a course of physical therapy one month later. Tr. at 565-73.
D. Step Five
Gregory argues that ALJ Wisz sidestepped applying the Medical-Vocational Guidelines (“Grid Rules”) in a non-mechanical fashion. The Acting Commissioner asserts that the Acting Commissioner met his burden at step five by identifying other work suitable for Gregory's RFC. The undersigned cannot determine whether ALJ Wisz considered placing Gregory in the next age category. The lack of reasoning impedes judicial review of decision, so remand is appropriate.
As noted above, while a claimant has the burden at steps one through four, it is the Acting Commissioner's burden at step five to show that work the claimant can perform is available. Pass, 65 F.3d at 1203 (citing Hunter v. Sullivan, 993 F.2d 21, 35 (4th Cir. 1992)). “The Commissioner may meet this burden by relying on the Medical-Vocational Guidelines (Grids) or by calling a vocational expert to testify.” Aistrop v. Barnhart, 36 Fed.Appx. 145, 146 (4th Cir. 2002) (citing 20 C.F.R. § 404.1566). The Grids are published tables that take administrative notice of the number of unskilled jobs at each exertional level in the national economy. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(a).
When a claimant suffers solely from exertional impairments, the Grids may satisfy the Acting Commissioner's burden of coming forward with evidence on the availability of jobs the claimant can perform. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir. 1983). When a claimant: (1) suffers from a non-exertional impairment that restricts his ability to perform work of which he is exertionally capable, or (2) suffers an exertional impairment which restricts him from performing the full range of activity covered by a work category, the ALJ may not rely on the Grids and must produce specific vocational evidence showing that the national economy offers employment opportunities to the claimant. See Walker v. Bowen, 889 F.2d 47, 49 (1989); Hammond v. Heckler, 765 F.2d 424, 425-26 (4th Cir. 1985); Cook v. Chater, 901 F.Supp. 971 (D. Md. 1995); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(h). In such circumstances, the ALJ must consider all relevant facts, using the grid tables to provide framework and guidance to the ALJ. 20 C.F.R. § 404.1569a; 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2).
The Regulations establish three chronological age categories: (1) younger person (under age 50); (2) person closely approaching advanced age (age 50-54); (3) person of advanced age (age 60 or older). 20 C.F.R. § 404.1563(c)-(e). In a borderline age situation, the Regulations state that the ALJ “will not apply the age categories mechanically in a borderline situation, ” but will instead “consider whether to use the older age category after evaluating the overall impact of all the factors of [the claimant's] case.” 20 C.F.R. § 404.1563(b).
As noted above, at step five ALJ Wisz found that there were other jobs that Gregory could do given his age, education, work experience, and RFC. Tr. at 34. But upon turning 50 in August 2017, Gregory changed age categories under the Grids. And considering those same factors, Grid Rule 201.14 directed a finding that he was disabled. Tr. at 34-35.
Gregory contends that a borderline age situation existed because he was less than five months from turning 50 on his date last insured-March 31, 2017. He is disabled under the Grid Rule 201.14 upon turning 50, given his education, work experience, and RFC. So, Gregory posits, ALJ Wisz disregarded applying the Grid Rules in a non-mechanical fashion to a borderline age situation to decide that he was not disabled before he turned 50.
The court must first determine whether this case presents a borderline age situation. If so, it must then examine whether ALJ Wisz erred in failing to consider whether to classify Gregory in the next age category-a person approaching advance age.
To identify borderline age situations, internal Agency policy guidelines provide a two-part test:
(1) Is the claimant's age within a few days or a few months of the next higher age category?
(2) Will the higher age category result in a decision of “disabled” instead of “not disabled”?
If the answer to one or both parts of the test is “no, ” a borderline age situation either does not exist or would not affect the outcome of the decision. The ALJ will then use the claimant's chronological age.
If the answer to both parts of the test is “yes, ” a borderline age situation exists, and the ALJ must decide whether it is more appropriate to use the claimant's chronological age or the higher age category.
SSA Hearings, Appeals, and Litigation Manual (“HALLEX”) I-2-2-42.
There are no fixed standards to determine whether an individual is “within a few days to a few months of a higher age category” because “such guidelines would themselves reflect a mechanical approach.” SSR 83-10. But a review of case law confirms that, generally, claimants who are within six months of the next age category are routinely considered borderline. See Barrett v. Apfel, 40 F.Supp.2d 31, 39 (D. Mass. 1999) (collecting cases holding that up to six months can qualify); Roush v. Heckler, 632 F.Supp. 710 (S.D. Ohio 1985) (six months was borderline case); Bush v. Astrue, No. 5:06-CV-766, 2008 WL 867941, at *5-6 (S.D. W.Va. Mar. 28, 2008) (collecting cases); POMS 25015.006 DI (a few days to a few months to means a period not to exceed six months).
Being within “a few days or few months” of reaching the higher age category includes not just attaining the minimum age for that category. An ALJ must also consider whether a claimant “will reach the next higher age category within a few days to a few months” of the date of the decision or the date last insured (“DLI”). SSA Program Operations Manual System (“POMS”) DI 25015.006. Then, if the claimant's chronological age results in a finding that he is not disabled, but using the next higher age category renders a disabled determination, a borderline age situation is present. Id.
The Acting Commissioner does not dispute Gregory's position that this matter presents a borderline age situation. Gregory's DLI was less than five months from the date when he would reach a higher age category. So it falls within the six-month window where the Acting Commissioner generally considers a borderline age case.
But the presence of a borderline age situation does not trigger an automatic application of the higher age category. While the facts here align with those the SSA routinely considers borderline, ALJ Wisz did not address the borderline age issue.
The Regulations do not address whether an ALJ must explain the decision to use a claimant's chronological age or to apply the next older age category in borderline age situations. But SSA's internal policies state that the ALJ will explain the borderline age situation and conclusions. See POMS DI 25015.006 (“Explain your decision to use the next higher age category or your decision to use the claimant's chronological age, including the case-specific supporting factors.”); HALLEX 1-2-2-42, 2016 WL 1167001, at *2 (Mar. 25, 2016). (“The ALJ will explain in the decision that he or she considered the borderline age situation, state whether he or she applied the higher age category or the chronological age, and note the specific factor(s) he or she considered.”). Thus, SSA's internal guidelines suggest explaining the resolution of a borderline age situation is proper.
Courts of Appeals are split on whether an ALJ must explicitly discuss consideration of the borderline age issue. Some have found that the ALJ must explain her age categorization. See Phillips v. Astrue, 671 F.3d 699, 707 (8th Cir. 2012); Lucas v. Barnhart, 184 F. App'x. 204, 208 (3rd Cir. 2006); Daniels v. Apfel, 154 F.3d 1129, 1133, n. 5 (10th Cir. 1998). But others have not found such a requirement. See Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071-1072 (9th Cir. 2010); Bowie v. Comm'r Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008); Miller v. Comm'r Soc. Sec., 241 F. App'x. 631, 635 (11th Cir. 2007).
The Fourth Circuit has not yet addressed this issue. But several district courts within the Fourth Circuit have required that ALJ to provide some analysis and make express findings in borderline age situations. See Pickett v. Astrue, 895 F.Supp.2d 720, 724-25 (E.D. Va. Sept. 7, 2012) (remanding because “[t]he greater weight of authority leads to the conclusion that the ALJ's failure to explicitly address the borderline age issue provides insufficient basis for review” where plaintiff was less than four months away from the higher age category); Brown v. Astrue, 2009 WL 890116, No. 3:07-2914-SB, at *12 (D.S.C. Mar. 30, 2009) (remanding where the ALJ offered no analysis for applying the plaintiff's chronological age when plaintiff was four months shy of the higher age category); Bush, 2008 WL 867941, at *7-8 (S.D. W.Va. Mar. 28, 2008) (finding that the Acting Commissioner's decision was not supported by substantial evidence where the ALJ failed to explain his choice of age category when claimant was 116 days from a higher age category); Woody v. Barnhart, 2006 WL 2349939, at *3-4 (W.D. Va. Aug.14, 2006) (remanding where the ALJ provided no substantive analysis on use of the Grids where claimant was 57 days short of a higher age category). So there is support for expecting an explanation of Gregory's borderline age situation.
It remains unclear whether ALJ Wisz considered the borderline age category at all, or if she did consider it but decide against its application, for unstated reasons. The lack of discussion why Gregory was not classified in the older age bracket leaves a reviewing body unable to meaningfully examine ALJ Wisz's determination.
The Acting Commissioner points out that ALJ Wisz remarked on the fact that Gregory changed categories between his onset date and her decision. She specifically noted that the older age category applied when he turned 50 in August 2017. Tr. at 34-35. And ALJ Wisz found that Gregory is disabled under Grid Rule 201.14 at that time. Tr. at 35.
These statements in the decision may recognize that Gregory changed age categories between filing his claim and ALJ Wisz's determination. But they do not signal that ALJ Wisz considered the borderline age situation or whether to classify Gregory in the higher age category as of his last insured date, before he turned 50.
The Acting Commissioner also tries to rescue ALJ Wisz's omission by pointing to the Appeals Council's decision. Yet its entire consideration was one sentence: “We also considered the borderline age situation in this case, and we found that the factors in the record do not support application of the higher age category.” Tr. at 2.
The Appeals Council's conclusion offers no insight about what factors counseled against classifying Gregory in the older age category. Its determination too lacks any reasons or analysis for a court to review. So the undersigned cannot conclude that Appeals Council's review corrected ALJ Wisz's oversight.
Internal agency guidance used to require ALJs to consider “additional vocational adversities” that could justify the use of the higher age category. But newer internal guidelines do not require the claimant to show additional vocational adversities. See Huigens v. Soc. Sec. Admin., Comm'r, 718 Fed.Appx. 841, 846 n.2 (11th Cir. 2017) (citation omitted). Rather, an ALJ must only consider the overall impact of all the factors-RFC, age, education, and work experience-and any additional element(s) present that seriously affects a claimant's ability to adjust to other work. HALLEX I-2-2-42. Thus, contrary to the Acting Commissioner's argument, Gregory need not show “additional vocational adversities” for the older age category to be applied. So failing to show additional vocational adversities would not defeat Gregory's claim.
The undersigned does not decide whether Gregory should or should not be placed in the category of approaching advance age before he actually achieved the minimum age. But ALJ Wisz's lack of explanation for her conclusions on the borderline age situation impedes a substantial evidence review.
Gregory has shown that the facts of his case involve a borderline age situation. At step five, ALJ Wisz needed to consider that factor, explaining her reasons to either apply or decline to use the older age category. Having failed to do so was error. And the Appeals Council's affirmance failed to explain the conclusion.
These deficiencies leave a court unable to conduct a meaningful substantial evidence review. Thus, Gregory's argument is meritorious and justifies remand.
III. Conclusion
For all these reasons, the undersigned recommends that the court deny Gregory's Motion for Judgment on the Pleadings (D.E. 19), deny Kijakazi's Motion for Judgment on the Pleadings (D.E. 23), and remand this matter to the Acting Commissioner for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.