BOWMAN v. COLVIN

Filing 18

ORDER ADOPTING 17 REPORT AND RECOMMENDATION signed by SENIOR JUDGE MAURICE M PAUL on 10/8/15 - the decision of the Administrative Law Judge is reversed, and this matter is remanded to the Commissioner. The Clerk is directed to en ter final judgment remanding this case to the Commissioner under sentence four of 42 U.S.C. § 405(g). Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42 U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. (tss)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
DIANA DEE BOWMAN,
Plaintiff,
v.

CASE NO. 1:15-cv-00008-MP-CAS

CAROLYN COLVIN,
Defendant.
_____________________________/
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report and
Recommendation dated August 20, 2015. (Doc. 17), which recommends remanding the matter to
the Commissioner for further proceedings. The parties have been furnished a copy of the Report
and Recommendation and have been afforded an opportunity to file objections pursuant to Title
28, United States Code, Section 636(b)(1). The time for filing objections has passed, and none
have been filed.
Having considered the Report and Recommendation, I have determined that the Report
and Recommendation should be adopted. This case involves the question of how an
Administrative Law Judge (“ALJ”) must consider the effect of a claimant’s age when the
claimant is at the borderline between the different age classifications found in the regulations.
As the Magistrate Judge explained, the regulations divide claimants into several age categories:
“younger person“ (under age 50); “person closely approaching advanced age” (age 50 to 54);
and “person of advanced age” (age 55 or older). 20 C.F.R. § 404.1563(c)-(e). The classification
of a person’s age can be important because, in general, the higher the age category, the more
lenient the standard for proving a disability. For example, the Vocational Grids themselves take
into account advanced age:

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However, for individuals of advanced age who can no longer perform
vocationally relevant past work and who have a history of unskilled work
experience, or who have only skills that are not readily transferable to a
significant range of semi-skilled or skilled work that is within the individual's
functional capacity, or who have no work experience, the limitations in vocational
adaptability represented by functional restriction to light work warrant a finding
of disabled.
20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 2, § 202.00(c). In other words, the Commissioner
should “consider that at advanced age (age 55 or older), age significantly affects a person’s
ability to adjust to other work” even if the claimant would otherwise have the residual functional
capacity to perform that work. 20 C.F.R. § 404.1563(e).
Here, the Court agrees with the Magistrate Judge that plaintiff’s age should be
considered as of the date of the ALJ’s decision, which makes her 54 years and 11 months old -plaintiff was less than one month from her 55th birthday. The Court also agrees with the
Magistrate Judge that this puts plaintiff on the borderline of the “person of advanced age”
classification. The Magistrate Judge correctly noted that the regulations also provide that age
categories are not applied mechanically in borderline situations. The regulations provide:
For example, a rule for an individual of advanced age (55 or older) could be
found applicable, in some circumstances, to an individual whose chronological
age is 54 years and 11 months (closely approaching advanced age). No fixed
guidelines as to when a borderline situation exists are provided since such
guidelines would themselves reflect a mechanical approach.
SSR 83-10, 1983 SSR LEXIS 30, at *20 (emphasis added). Furthermore, 20 C.F.R. §
404.1563(b) establishes a burden on the Commissioner and ALJ to consider the borderline nature
of the age of the claimant:
We will not apply the age categories mechanically in a borderline situation. If you
are 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 you
are disabled, we will consider whether to use the older age category after
evaluating the overall impact of all the factors of your case.
Case No: 1:15-cv-00008-MP-CAS

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Here, the plaintiff was within one month of her 55th birthday. Considering that her
situation is the exact example given in SSR 83-10, the Court agrees that her age is close enough
that the ALJ should explicitly or implicitly consider which age category should be applied. See
also Pettway v. Astrue, No. CIV.A 10-127-C, 2010 WL 3842365, at *3 (S.D. Ala. Sept. 27,
2010)(canvassing cases from across the nation which address when an age should be considered
borderline). The Court further agrees with the Magistrate Judge and our sister courts in the
Middle District of Florida that the ALJ is required (1) to provide claimant an opportunity to be
heard on this borderline situation issue, (2) to make an individualized determination of the age
factor, and (3) to expressly articulate his or her consideration of the claimant's borderline
situation. Roark v. Comm'r of Soc. Sec., No. 6:14-CV-84-ORL-37TBS, 2015 WL 1288140, at
*1 (M.D. Fla. Mar. 20, 2015); Rogers v. Comm'r of Soc. Sec., No. 6:12–cv–1156–Orl–GJK,
2013 WL 5330452, *3–4 (M.D.Fla. Sept.23, 2013). In this case, the Court agrees that it “is
unable to determine from the record whether the ALJ considered the borderline situation,
implicitly or otherwise, and, without this explanation, it cannot conclude that the ALJ’s decision
is supported by substantial evidence.” Doc. 17, p. 39. Remand under sentence four of 42 U.S.C.
§ 405(g) is therefore required.
A remand under sentence four is considered a final judgment. Bergen v. Commissioner,
454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating otherwise, a successful
plaintiff’s counsel would normally have fourteen days after the order of remand to file a motion
with the District Court requesting an award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B). This
Rule has been interpreted by the Eleventh Circuit to even apply to a request for fees to be paid
from plaintiff’s past due benefits pursuant to 42 U.S.C. § 406(b)(1).

Bergen, 454 F.3d at

1277-78. However, plaintiff's counsel in such a case will not know the amount of benefits - and
Case No: 1:15-cv-00008-MP-CAS

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therefore fees - until after the Commissioner awards benefits, which typically takes longer than
fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is
warranted, and was recommended by the Bergen opinion. Id.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge is adopted, the decision of the
Administrative Law Judge is reversed, and this matter is remanded to the Commissioner.
The Clerk is directed to enter final judgment remanding this case to the Commissioner
under sentence four of 42 U.S.C. § 405(g) for the Appeals Council and/or ALJ (1) to
provide Plaintiff an opportunity to be heard on the borderline age issue, (2) to make an
individualized determination of the age factor, and (3) to expressly articulate their
consideration of Plaintiff’s borderline situation.
Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42
U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. The
plaintiff shall file a motion to award fees under 406(b) within 30 days after counsel
receives notice from the Commissioner as to plaintiff’s past due benefits.
This stay relates only to attorney fee proceedings under § 406(b) of the Social Security
Act, not to attorney fee proceedings under the Equal Access to Justice Act, 28 U.S.C. §
2412, the latter of which may be adjudicated at this time.
DONE AND ORDERED this

8th day of October, 2015

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:15-cv-00008-MP-CAS