Vaughn v. Berryhill

Filing 28

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her Complaint and Brief in Support of Plaintiff's Complaint is GRANTED in part and DENIED in part. [Docs. 1, 22.] IT IS FURTHER ORDERED that the ALJ's dec ision of June 24, 2016 is REVERSED and REMANDED. IT IS FURTHER ORDERED that upon remand, the ALJ shall consider whether Plaintiff's age category should be considered a borderline case and, if so, whether Plaintiff's age category should be changed. IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for Nancy A. Berryhill in the court record of this case. Signed by Magistrate Judge Nannette A. Baker on 07/28/20. (CMH)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

CYNTHIA VAUGHN,
Plaintiff,
v.
ANDREW M. SAUL 1,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:17-CV-56 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Cynthia Vaughn’s (“Vaughn”) appeal
regarding the denial of supplemental security income under the Social Security Act. The Court
has jurisdiction over the subject matter of this action under 42 U.S.C. § 405(g). The parties have
consented to the exercise of authority by the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c).

[Doc. 8.]

The Court has reviewed the parties’ briefs and the entire

administrative record, including the transcript and medical evidence. Based on the following, the
Court will reverse the Commissioner’s decision and remand this action.
I.

Issues for Review
Vaughn presents two issues for review. First, she asserts that the ALJ failed to consider

whether to use the older age category under the Medical-Vocational Guidelines. Second, she
asserts that the ALJ’s residual functional capacity (“RFC”) determination that she could perform

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At the time this case was filed, Nancy A. Berryhill was the Acting Commissioner of Social Security. Andrew M.
Saul became the Commissioner of Social Security on June 4, 2019. When a public officer ceases to hold office
while an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P. 25(d).
Later proceedings should be in the substituted party’s name and the Court may order substitution at any time. Id.
The Court will order the Clerk of Court to substitute Andrew M. Saul for Nancy A. Berryhill in this matter.

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the full range of sedentary work was not supported by substantial evidence. The Commissioner
asserts that the ALJ’s decision is supported by substantial evidence in the record as a whole and
should be affirmed.
II.

Standard of Review
The Social Security Act defines disability as an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001).

This Court reviews the decision of the ALJ to determine whether the decision is

supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial
evidence is less than a preponderance, but enough that a reasonable mind would find adequate
support for the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The Court
determines whether evidence is substantial by considering evidence that detracts from the
Commissioner’s decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902,
906 (8th Cir. 2006). The Court may not reverse just because substantial evidence exists that
would support a contrary outcome or because the Court would have decided the case differently.
Id. If, after reviewing the record as a whole, the Court finds it possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner’s finding,
the Commissioner’s decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th
Cir. 2004).
The Court must affirm the Commissioner’s decision so long as it conforms to the law and
is supported by substantial evidence on the record as a whole. Collins ex rel. Williams v.

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Barnhart, 335 F.3d 726, 729 (8th Cir. 2003). “In this substantial-evidence determination, the
entire administrative record is considered but the evidence is not reweighed.” Byes v. Astrue,
687 F.3d 913, 915 (8th Cir. 2012).
III.

Background
Vaughn alleged disability due to back and neck problems, migraine headaches, knee

problems, osteoarthritis, degenerative disc disease, and hearing loss in her right ear. (Tr. 148.)
Before she stopped working, she worked as a dishwasher, cook, night secretary, and janitor. (Tr.
181.) Vaughn applied for benefits on April 24, 2014. (Tr. 111-31.) At the time of her
application, she was 47 years old. At the time of the ALJ’s decision, she was 70 days short of
her 50th birthday.
This case was originally filed in this court on April 13, 2017. The Commissioner was
unable to locate the administrative record at that time and the Court remanded this action so that
the administrative record could be located on July 17, 2017. [Doc. 15.] The administrative
record was later found and this action was re-opened on March 20, 2019. [Doc. 18.]
IV.

Discussion
The SSA uses a five-step analysis to determine whether a claimant seeking disability

benefits is in fact disabled. 20 C.F.R. § 416.920(a)(1). First, the claimant must not be engaged
in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). The ALJ found that Vaughn had not
engaged in substantial gainful activity since the date of her application on April 24, 2014. (Tr.
19.)
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act. 20 C.F.R. § 416.920(a)(4)(ii). The ALJ determined that

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Vaughn had the following severe impairments: osteoarthritis of the knees, history of headaches,
degenerative disc disease of the cervical spine, and chronic obstructive pulmonary disease
(“COPD”). (Tr. 19.) The ALJ determined that Vaughn’s obstructive sleep apnea, carpal tunnel
syndrome, celiac disease, and depression were not severe impairments. (Tr. 19.)
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the appendix of the applicable regulations. 20 C.F.R. § 416.920(a)(4)(iii).
The ALJ determined that Vaughn did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed impairment. (Tr. 23.)
Fourth, if the claimant’s impairments do not meet or equal a listed impairment, the SSA
determines the claimant’s RFC to perform past relevant work. 20 C.F.R. § 416.920(e). The ALJ
then determined that Vaughn had the RFC to perform the full range of sedentary work. (Tr. 23.)
After RFC is established, the claimant must establish that the impairment prevents him or her
from doing past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). Vaughn did not have any past
relevant work. (Tr. 26.)
Therefore, the analysis proceeded to step five. At step five, the burden shifts to the
Commissioner to establish the claimant maintains the RFC to perform a significant number of
jobs in the national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant
satisfied all of the criteria under the five-step evaluation, the ALJ will find the claimant to be
disabled. 20 C.F.R. § 416.920(a)(4)(v).
“The medical-vocational guidelines, or grids, ‘are a set of charts listing certain vocational
profiles that warrant a finding of disability or non-disability.’” Phillips v. Astrue, 671 F.3d 699,
702 (8th Cir. 2012) (citing McCoy v. Astrue, 648 F.3d 605, 613 (8th Cir. 2011)). “The grids
come into play at step five of the analysis, where the burden shifts to the Commissioner to show

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that the claimant has the physical residual capacity to perform a significant number of other jobs
in the national economy that are consistent with her impairments and vocational factors such as
age, education, and work experience.” Phillips, 671 F.3d at 702 (citing Holley v. Massanari, 253
F.3d 1088, 1093 (8th Cir. 2001)). “If the ALJ’s findings as to RFC, age, education, and work
experience fit any of the combinations of those criteria contained in the Tables in Appendix 2 to
Part 404, then the ALJ must reach the conclusion (either disabled or not disabled) directed by the
relevant Rule or line of the applicable Table.” Phillips, 671 F.3d at 702 (quoting Reed v.
Sullivan, 988 F.2d 812, 816 (8th Cir. 1993)).
There are three age categories: a younger person (under age 50), a person closely
approaching advanced age (ages 50-54), and a person of advanced age (age 55 and older). See
20 C.F.R. 416.963(c)-(e).

The regulations direct that the age categories not be applied

mechanically in a borderline situation. 20 C.F.R. § 416.963(b). “If a claimant is 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, the agency will consider
whether to use the older age category after evaluating the overall impact of all the factors of the
claimant’s case.” Phillips, 671 F.3d at 702. “To determine whether to apply the claimant’s
chronological age or the higher age, the Council adopted a sliding scale approach whereby the
claimant must show progressively more additional vocational adversity(ies)- to support use of
the higher age- as the time period between the claimant’s actual age and his or her attainment of
the next higher age category lengthens.”

Id.

“If the claimant does not show “additional

adversities justifying use of the higher age category the adjudicator will use the claimant’s
chronological age- even when the time period is only a few days and the adjudicator need not
explain his use of the claimant’s chronological age.” Id.

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If the medical-vocational guidelines do not apply, the Commissioner can rely on the
testimony of a vocational expert to carry the burden of proof of showing that jobs exist in the
national economy that a claimant can perform. Long v. Chater, 108 F.3d 185, 188 (8th Cir.
1997). “If the claimant satisfied all of the criteria under the five-step evaluation, the ALJ will
find the claimant to be disabled. 20 C.F.R. § 416.920(a)(4)(v).
In this case, the ALJ found that Vaughn was a younger aged individual, because she was
47 years old on the date that the application was filed. (Tr. 26.) Vaughn contends because she
turned 50 years old two months after the ALJ’s decision, the ALJ should have determined
whether her case should be considered a borderline case and whether this warranted moving up
her age category. If the ALJ ultimately had determined that Vaughn’s case was a borderline case
that warranted changing her age category, along with her eighth grade education, lack of past
relevant work, and no transferrable skills under Rule 201.10 of Table 1, she would have been
found disabled under the Medical-Vocational Guidelines. Further, the ALJ did not mention that
she was within two months of the closely approaching age category at the time of the decision.
The Commissioner responds that the ALJ considered Vaughn was entitled to a change in age
category, because he specifically referenced Vaughn’s birth date and that she was 47 years old at
the time of her application. (Tr. 26.) The Court notes the ALJ also cited the relevant regulation,
20 C.F.R. § 416.963. (Tr. 26.)
Based on the foregoing, the Court will reverse the Commissioner’s decision and remand
this action for further proceedings. The case law in the Eighth Circuit is clear. Simply noting a
claimant’s age, her current age category, and the relevant regulation is not sufficient to
demonstrate that the ALJ considered whether the borderline situation warranted moving Vaughn
to the next category. See Phillips, 671 F.3d at 706-707. “In a case in which the claimant’s age

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indicates he or she might well fall within a borderline category, the ALJ’s failure to note that the
ALJ has considered whether a claimant falls into a borderline category, and if so, whether
bumping up the claimant is warranted, constitutes a failure to offer findings of fact and reasons
for the decision.” Phillips, 671 F.3d at 707. Because the Court cannot determine from the
record if the Commissioner considered whether Vaughn should be moved to a higher age
category, substantial evidence does not support the Commissioner’s decision. See Wright v.
Saul, No. 1:18-CV-291 SPM, 2020 WL 1158136 at *4 (E.D. Mo. Mar. 10, 2020) (substantial
evidence to support decision not found when opinion is silent about whether ALJ considered
claimant’s case a borderline case); Woods v. Saul, No. 4:18-CV-1431 CDP, 2019 WL 4169356
at*4 (E.D. Mo. Sept. 3, 2019) (case remanded because ALJ’s decision silent regarding whether
ALJ considered case a borderline case).
Finally, the Court notes that the Appeals Council denied Vaughn’s request for review and
commented on Vaughn’s borderline age situation. (Tr. 13A-13C.) In its opinion, the Appeals
Council wrote “We 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. 13B.) If the
Appeals Council grants review, its decision, absent a remand to the ALJ, becomes the
Commissioner’s final agency action that is subject to judicial review. Wright, 2020 WL 1158136
at *5 (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). In this case, because the
Appeals Council denied review, the ALJ’s decision is the final decision of the Commissioner.
See 20 C.F.R. 416.1481 (“The Appeals Council’s decision, or the decision of the administrative
law judge if the request for review is denied, is binding unless you or another party file an action
in Federal district court, or the decision is revised.”). Therefore, this Court may only review that

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decision, not the Appeals Council’s non-final administrative decision. See Wright, 2020 WL
1158136 at *5, Woods, 2019 WL 4169356 at*4.
Because the Court is remanding this action to the Commissioner for further proceedings
on the borderline age issue, the Court will not address Plaintiff’s second argument regarding the
residual functional capacity determination. In summary, the Court finds that the ALJ’s decision
is not supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the relief which Plaintiff seeks in her Complaint and
Brief in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs.
1, 22.]
IT IS FURTHER ORDERED that the ALJ’s decision of June 24, 2016 is REVERSED
and REMANDED.
IT IS FURTHER ORDERED that upon remand, the ALJ shall consider whether
Plaintiff’s age category should be considered a borderline case and, if so, whether Plaintiff’s age
category should be changed.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul
for Nancy A. Berryhill in the court record of this case.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of July, 2020.

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