Polyak v. Berryhill
Filing
24
ORDER granting in part and denying in part 17 Motion for Judgment on the Pleadings; denying 18 Motion for Judgment on the Pleadings. Signed by Holly B. Fitzsimmons on 12/5/18. (AGE)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
------------------------------x
:
LYUDMILA POLYAK
:
:
v.
:
:
NANCY A. BERRYHILL, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
:
:
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Civil No. 1:17CV00215 (HBF)
RULING ON CROSS MOTIONS
Plaintiff Lyudmila Polyak brings this action pursuant to 42
U.S.C. §405(g), seeking review of a final decision of the
Commissioner of Social Security which denied her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security
Act, 42 U.S.C. §401 et seq. (“the Act”). Plaintiff has moved to
reverse or remand the case for a rehearing. The Commissioner has
moved to affirm.
For the reasons set forth below, plaintiff’s Motion for
Judgment on the Pleadings [Doc. #1] is GRANTED in part and
DENIED in part. Defendant’s Motion and Motion for Judgment on
the Pleadings [Doc. #18] is DENIED.
I. ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.
Plaintiff protectively filed an application for DIB benefits on
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June 3, 2013 and SSI benefits on June 28, 2013, alleging
disability as of May 21, 2013. [Certified Transcript of the
Record, Compiled on May 20, 2017, Doc. #7 (hereinafter “Tr.”)
16, 205-11; 212-18]. Plaintiff alleged disability due to a
dislocated hip and other hip problems, depression, panic
attacks, and leg problems. [Tr. 232]. Her applications were was
denied on September 20, 2013. [Tr. 150-55]. Plaintiff filed a
timely request for a hearing before an Administrative Law Judge
(“ALJ”) on September 26, 2013. [Tr. 156-58].
On June 23, 2015, Administrative Law Judge (“ALJ”) Stephen
Cordovani held a hearing, at which plaintiff appeared with an
attorney and testified. [Tr. 31-66]. Vocational Expert (“VD”)
Josiah L. Pearson also testified at the hearing. [Tr. 57-64]. On
October 13, 2015, the ALJ found that plaintiff was not disabled,
and denied her claim. [Tr. 13-30]. Plaintiff filed a timely
request for review of the hearing decision on October 29, 2015.
[Tr. 8-11]. On February 16, 2017, the Appeals Council denied
review, thereby rendering ALJ Glazer’s decision the final
decision of the Commissioner. [Tr. 1-4]. The case is now ripe
for review under 42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this action
for review and moves to reverse and/or remand the Commissioner’s
decision.
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II.
STANDARD OF REVIEW
The review of a social security disability determination
involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
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the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added) (citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civil Action No. 3:13-CV00073(JCH), 2014 WL 1304715, at *6 (D. Conn. Mar. 31, 2014)
(internal citations omitted).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
4
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013)(citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
To be considered disabled under the Act and therefore
entitled to benefits, Ms. Polyak must demonstrate that she is
unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that [s]he is not only unable to do
h[er] previous work but cannot, considering h[er] age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
42 U.S.C. §423(d)(2)(A); see also 20 C.F.R.
5
§404.1520(c)(requiring that the impairment “significantly limit[
] ... physical or mental ability to do basic work activities” to
be considered “severe”).1
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520(a)(4). In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
DIB and SSI regulations cited herein are virtually identical.
The parallel SSI regulations are found at 20 C.F.R. §416.901 et
seq., corresponding to the last two digits of the DIB cites
(e.g., 20 C.F.R. §404.1520 corresponds with 20 C.F.R. §416.920).
1
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which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” is what a person is still capable
of doing despite limitations resulting from his physical and
mental impairments. See 20 C.F.R. §§404.1545(a), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (citation
omitted). “[E]ligibility for benefits is to be determined in
light of the fact that the Social Security Act is a remedial
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statute to be broadly construed and liberally applied.” Id.
(citation and internal quotation marks omitted).
IV.
THE ALJ’S DECISION
Following the above-described five step evaluation process,
ALJ Glazer concluded that plaintiff was not disabled under the
Social Security Act. [Tr. 13-30]. At step one, the ALJ found
that plaintiff had not engaged in substantial gainful activity
since May 21, 2013, the alleged onset date.2 [Tr. 18].
At step two, the ALJ found that plaintiff had degenerative
joint disease of the left hip, status post open reduction and
internal fixation; asthma, depressive disorder, and panic
disorder with agoraphobia, all of which are severe impairments
under the Act and regulations. Id.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of one of the listed impairments in 20 C.F.R. Pt.
404, Subpart P, Appendix 1. [Tr. 19-21]. The ALJ specifically
considered Listings 1.00 (musculoskeletal system), 3.00
(respiratory) and 12.00 (mental disorders). [Tr. 19-21].
The
ALJ also conducted a psychiatric review technique and found that
plaintiff had a no restriction in activities of daily living;
SSI benefits are not payable for any period prior to the month
after the application is filed. See 42 U.S.C. §1382(c)(7); 20
C.F.R. §§416.335, 416.501.
2
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moderate difficulties in social functioning; and concentration,
persistence or pace. [Tr. 20]. The ALJ found no episodes of
decompensation. [Tr. 20].
Before moving on to step four, the ALJ found plaintiff had
the RFC
to perform sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) except that walking and
standing are limited to no more than 15 minutes at one
time. The claimant cannot work at unprotected heights;
can occasionally climb ramps, stairs, and balance; can
never kneel, crouch, or crawl; can never climb
ladders, ropes, or scaffolds; must avoid concentrated
exposure to fumes, odors, dusts, gases, poor
ventilation, and other respiratory irritants; is able
to work in a low stress work environment (i.e. she can
understand, remember and carry out simple instructions
and tasks with no supervisory duties, no independent
decision-making required, no strict production quotas,
and only minimal changes in work routine and
processes, etc.); can have frequent interaction with
supervisors; can have occasional interaction with coworkers; and can have no or only incidental
interaction with the general public.
[Tr. 21-24].
At step four, the ALJ found plaintiff was unable to
perform any past relevant work. [Tr. 24]. At step five,
after considering plaintiff’s age, education, work
experience and RFC, the ALJ found that jobs existed in
significant numbers in the national economy that plaintiff
could perform. [Tr. 24-25].
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V.
DISCUSSION
Plaintiff makes two arguments in support of her position
that the ALJ’s decision should be reversed and/or remanded. The
Court will address these arguments in turn.
Application of the Borderline Age Rule
When making a disability determination, an ALJ must
“consider [the claimant's] chronological age in combination with
her residual functional capacity, education, and work
experience.” 20 C.F.R. § 404.1563(a), 416.963(a). Because the
SSA considers “advancing age to be an increasingly limiting
factor in the person's ability” to adjust to other work, the
grids provide for three distinct age categories: (1) “younger
person,” meaning an individual between the ages 18 and 49; (2)
“person closely approaching advanced age,” meaning an individual
between the ages 50 and 54; and (3) “person of advanced age.”
meaning an individual 55 years of age and over. 20 C.F.R. §§
404.1563(c)-(e), 416.963(c)-(e). “The distinction between being
classified as a ‘younger person’ and being classified as a
‘person closely approaching advanced age’ can be dispositive in
determining whether an individual qualifies as disabled.” Grace
v. Astrue, No. 11 Civ. 9162 (ALC)(MHD), 2013 WL 4010271, at *24
(S.D.N.Y. July 31, 2013)(citations omitted).
The application of the age categories should not be rigid,
and instead, the Regulations instruct:
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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.
20 C.F.R. §§404.1563(b), 416.963(b); Grace, 2013 WL 4010271, at
*24 (“[C]ase law focusing on this issue is decisive. Mechanical
application of the age criteria...is not appropriate in
borderline cases.”)(quoting Hill v. Sullivan, 769 F. Supp. 467,
470 (W.D.N.Y. 1991).
Plaintiff argues that the ALJ erred in mechanically
applying the age criteria of the Medical-Vocational Guidelines.
She maintains that she should be considered a “borderline” case
because she was just four months and seven days shy of her 50th
birthday, which would move her into the “closely approaching
advanced age” category.
Some courts have interpreted the phrase “within a few days
to a few months of reaching an older age category” to mean up to
six months of reaching an older age category, while other courts
have held that three months is the outer limit. Compare,
Smolinski v. Astrue, No. 07-CV-386S, 2008 WL 4287819, at *4
(W.D.N.Y. Sept. 17, 2008) (“Among the district courts in the
Second Circuit, three months appears to delineate the outer
limits of ‘a few months.’”) (citing cases) with Rodriguez v.
11
Comm'r of Soc. Sec., No. 15-CV-6596 (ALC), 2016 WL 5660410, at
*8 (S.D.N.Y. Sept. 30, 2016) (“Although the regulations do not
clearly define the outer limits of a borderline situation,
several courts have held that a period of up to six months is
within the rule[.]”)(citation omitted).
Here, the ALJ had to decide whether, for purposes of DIB,
plaintiff was disabled on or before her date last insured, June
30, 2014, and whether, for purposes of SSI benefits, plaintiff
was disabled at any time between the date of her application,
June 28, 2013, and the date of the ALJ’s decision, October 13,
2015.3
The data used to calculate a claimant’s age differs when
applied to DIB under Title II of the Act and SSI under Title XVI
of the act. The date that should be used in DIB cases is the
date last insured, while the date applied in SSI cases is the
date of the ALJ’s ruling. Woods v. Colvin, 218 F. Supp. 3d 204,
208 (W.D.N.Y. 2016)(citing Torres v. Comm’r of Soc. Sec., No.
14-CV-6438, 2015 WL 5444888, at *10 n.4 (W.D.N.Y. Sept. 15,
2015) and Koszuta v. Colvin, NO. 14-CV-694-JTC, 2016 WL 82445,
at *2 (W.D.N.Y. Mar. 3, 2016)).
See Frye ex rel A.O. v. Astrue, 485 F. App’x 484, 485 n.1 (2d
Cir. Jun. 13, 2012 (noting that the relevant time period for a
SSI benefits application is “the date the SSI application was
filed, to...the date of the ALJ’s decision.”).
3
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For purposes of DIB, plaintiff, who was born in February
1966, was 48 years old on June 30, 2014, her date last insured,
and thus a “younger individual,” which classified her as “not
disabled” under the grids, Rule 201.18. This does not present a
“borderline situation,” since plaintiff would not turn 50 until
one year and eight months after her date last insured.
Accordingly, the ALJ did not err in his application of the grids
for DIB and plaintiff’s borderline age argument only applies to
her claim for SSI benefits.
The application of the age criteria is a closer call when
considering whether to award SSI benefits. On the date of the
ALJ’s decision, plaintiff was 4 months and seven days shy of her
50th birthday. Plaintiff argues that the ALJ failed to comply
with the Regulations by failing to consider whether to use the
older age category in a “borderline situation” where using the
older age category would result in a determination that she was
disabled. Specifically, she argues that had the ALJ used the
older age category of “person closely approaching advanced age,”
the ALJ would have found her to be disabled pursuant to 201.09,
of the Medical-Vocational Guidelines, which provides that an
individual in that age category is disabled if she has a
“limited education [Tr. 24], had no transferrable skills from
her past unskilled work [Tr. 24], and is unable to perform her
past relevant work. [Tr. 24].” [Doc. #17-1 at 17]. According to
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Plaintiff, remand is necessary for calculation of SSI benefits
as of October 13, 2015.
The Commissioner contends that plaintiff’s age as of the
date of the ALJ’s decision does not qualify as a “borderline age
situation,” citing Smolinski v. Astrue, No. 07-CV-386S, 2008 WL
4287819, at *4 (W.D.N.Y. Sept. 17, 2008)(“Among the district
courts in the Second Circuit, three months appears to delineate
the outer limits of ‘a few months.’”)(citing cases all predating
2008). Since 2008, several courts in this circuit have weighed
in with various results.
“The regulations do not provide any bright-line rule for
determining which cases are ‘borderline.’” Woods, 218 F. Supp.
3d at 208. However, “[m]ost district courts within the Second
Circuit follow the HALLEX and hold that a period of up to six
months is borderline.” Id. 218 F. Supp. 2d at 209. The SSA's
Hearings, Appeal and Litigation Law Manual (“HALLEX”) provides:
SSA does not have a precise programmatic definition
for the phrase “within a few days to a few months.”
The word “few” should be defined using its ordinary
meaning, e.g., a small number. Generally, SSA
considers a few days to a few months to mean a period
not to exceed six months.
HALLEX I–2–2–42, BORDERLINE AGE, 2016 WL 1167001, at *1 (S.S.A.
Mar. 25, 2016); see Rodriguez, 2016 WL 5660410, at *8 (“Although
the regulations do not clearly define the outer limits of a
borderline situation, several courts have held that a period of
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up to six months is within the rule[.]”)(quoting Koszuta, 2016
WL 824445, at *2 (collecting cases)) (internal quotation marks
and citation omitted); Woods, 216 F. Supp. 3d at 208 (49 years
and 7 months is “close enough to age 50 to be considered
‘borderline.’”).
For purposes of plaintiff’s SSI claim, it is apparent from
the case law that a borderline situation does exist. As
plaintiff was four months and seven days from her 50th birthday,
the ALJ should have considered whether it was more appropriate
to consider plaintiff in the “closely approaching advanced age”
category. The ALJ’s failure to consider the borderline age
situation and determine whether the higher age category should
be applied merits remand for proper consideration. See Woods,
218 F. Supp. 3d at 207 (“If a claimant’s age is ‘borderline’ and
the ALJ fails to consider whether the higher age category should
be used, remand is warranted so long as a higher age category
would entitle the claimant to benefits.”); Koszuta, 2016 WL
824445, at *2 (finding remand appropriate where the ALJ failed
to consider the borderline age situation, which would have
required him to consider and make additional findings on issues
such as transferability of work skills in order to determine
whether Plaintiff was disabled); Jerome v. Astrue, No. 2:08-CV98, 2009 WL 3757012, at *13 (D. Vt. Nov. 6, 2009) (finding the
ALJ's mechanical application of the Medical-Vocational
15
Guidelines unsupported by substantial evidence where he failed
to consider whether a borderline age situation existed);
Waldvogel v. Comm'r of Soc. Sec., No. 6:16-CV-0868 (GTS), 2017
WL 3995590, at *12 (N.D.N.Y. Sept. 11, 2017)(“Pursuant to the
guidance from our sister courts discussed above, the ALJ's
failure to consider the borderline age situation and determine
whether the higher age category should have been applied under
the circumstances would therefore be error meriting remand for
proper consideration of the borderline age situation.”); Grace,
2013 WL 4010271, at *24 (“In light of Mr. Grace's apparent
borderline age, the ALJ should have addressed whether
classifying him as a “person closely approaching advanced age”
was appropriate and whether it would have altered the outcome of
his application.”).
Accordingly, the Court finds in favor of plaintiff on this
claim of error and remands the case for further consideration.
VI.
CONCLUSION
For the reasons stated, plaintiff’s Motion for Judgment on
the Pleadings [Doc. #16] is GRANTED in part and DENIED in part.
Defendant’s Motion for Judgment on the Pleadings [Doc. #17] is
DENIED. This case is REMANDED for further proceedings consistent
with this opinion, pursuant to sentence four of 42 U.S.C.
§405(g). See Curry v. Apfel, 209 F.3d 117, 124 (2d Cir. 2000);
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42 U.S.C. §1383(c)(3).
In light of the Court’s findings above, it need not reach
the merits of plaintiff’s remaining argument. Therefore, this
matter is remanded to the Commissioner for further
administrative proceedings consistent with this opinion. On
remand, the Commissioner shall address the other claim of error
not discussed herein.
This is not a Recommended Ruling. The parties consented to
proceed before a United States Magistrate Judge [doc. #23] on
September 25, 2018, with appeal to the Court of Appeals. Fed. R.
Civ. P. 73(b)-(c).
SO ORDERED at Bridgeport, Connecticut this 5th day of
December 2018.
___/s/____________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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