ZITZLER v. COMMISSIONER OF SOCIAL SECURITY

Filing 29

MEMORANDUM, OPINION, ORDER Vacating the decision of the Administrative Law Judge; Case is REMANDED for further proceedings. Ordered that the Clerk shall close this case. Signed by Judge Renee Marie Bumb on 1/8/2019. (rss, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

KURT ZITZLER,
Civil No. 17-5790 (RMB)

Plaintiff,

MEMORANDUM OPINION & ORDER

v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.

BUMB, United States District Judge:
This matter comes before the Court upon an appeal by
Plaintiff Kurt Zitzler from a partial denial of social security
disability benefits.

Relevant to the instant appeal, the ALJ

rendered a decision favorable to Plaintiff for the period on and
after Plaintiff attained age 55.

An unfavorable decision was

rendered as to the period before Plaintiff attained 55. 1
With regard to the unfavorable portion of the decision,
Plaintiff contends on appeal that the ALJ erred as a matter of law
by not including in the decision a discussion of whether
Plaintiff’s case presented a “borderline age situation” under 20

The ALJ found that Plaintiff had the following severe
impairments: degenerative disc disease, post-traumatic stress
disorder, major depressive disorder and substance addiction
disorder, in recovery. [Administrative Record, p. 45]
1

1

C.F.R. § 404.1563. 2
Defendant responds that “[t]his is not a borderline age
case[,]” because Plaintiff was “approximately 5 months and 7 days
too young to meet the age category’s criteria on his date last
insured.”

(Opposition Brief, p. 1)

Defendant ultimately may be correct that this is not a
borderline age case.

Compare Kane v. Heckler, 776 F.2d 1130, 1133

(3d Cir. 1985) (stating that a borderline case is one where the
claimant is “a few days or months before the attainment of a
certain age”) with Roberts v. Barnhart, 139 F. App’x 418, 420 (3d
Cir. 2005) (“there [is no] authority extending the benefits of a
‘borderline’ age determination to persons . . . who are within
five (5) to six (6) months of their fiftieth birthday.”). 3

2

“On their face, the Grids make bright-line distinctions by age,
but the SSA’s regulation, 20 C.F.R. § 404.1563(b), promises that
where applicants 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 [they] are
disabled, [SSA] will consider whether to use the older age
category after evaluating the overall impact of all the factors of
[the] case.’ In such ‘borderline’ age cases, the SSA cannot
mechanically apply the Grids’ age categories, but must ‘give full
consideration to all relevant facts....’” Lucas v. Barnhart, 184
F. App’x 204, 206 (3d Cir. 2006).
3

But see, Vaughn v. Astrue, No. CIV.A. 10-155, 2011 WL 1628031,
at *5-6 (W.D. Pa. Apr. 28, 2011) (collecting cases holding that
six months, seven months, and ten months before the next age
category required a borderline age analysis, and explaining “[t]he
outer limits of what constitutes a ‘borderline age situation’
remains unsettled[.]”).
2

However, the ALJ must make the determination in the first
instance; failure to do so is reversible error.

Lucas, 184 F.

App’x at 207 (remanding to the SSA to “determine whether the 106day period . . . is ‘within a few days to a few months of reaching
an older age category under’ § 404.1563(b)”); Kane, 776 F.2d at
1134 (remanding to SSA to decide whether, “given claimant’s age
and circumstances” on the relevant date, the claimant was placed
in the correct age category). 4

The ALJ’s decision evidences no

consideration of the borderline age issue.

Thus, upon remand,

consistent with HALLEX § I-2-2-42(C)(5), the ALJ should “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.” 5
Accordingly, the Court vacates the decision of the ALJ and

4

See also, Byers v. Astrue, 506 F. App’x 788, 791 (10th Cir.
2012) (“we need not decide in this case whether a five-and-a-half
month gap qualifies as borderline. Based on the record before us,
it is unclear whether the ALJ was even aware of the potential
borderline situation in this case. . . . Thus, a remand is in
order.”); Talbot v. Berryhill, 2018 WL 3575302, at *4 (E.D. Pa.
July 24, 2018) (remanding case, explaining that “[t]he ALJ must
determine whether plaintiff was within a ‘borderline age’
category.”).
See also, POMS DI 25015.006(G) (“Document how you considered
borderline age whether you allow or deny the claim: 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.”).
5

3

remands for proceedings consistent with the above analysis.
ACCORDINGLY, it is on this _8th_ day of January, 2019,
ORDERED that the decision of the Administrative Law Judge is
VACATED and the case is REMANDED for further proceedings
consistent with this Memorandum Opinion; and it is further
ORDERED that the Clerk of Court shall close this case.

___s/ Renée Marie Bumb___
RENÉE MARIE BUMB, U.S.D.J.

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