Jacques v. Saul

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ JEANETTE J., Plaintiff, v. 6:19-CV-0795 (ML) ANDREW SAUL, Commissioner of Social Security Administration, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: ELIZABETH V. KRUPAR, ESQ. Legal Aid Society of Mid-New York, Inc. Counsel for the Plaintiff 221 South Warren Street, Suite 310 Syracuse, New York 13202 SOCIAL SECURITY ADMINISTRATION DANIEL S. TARABELLI, ESQ. Counsel for the Defendant 15 New Sudbury Street, Room 625 Boston, Massachusetts 02203 MIROSLAV LOVRIC, United States Magistrate Judge ORDER Currently pending before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to 42 U.S.C. §§ 405 (g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 17, 2020, during a telephone 1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. § 636 (c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner’s determination is not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by Plaintiff in this appeal. After due deliberation, and based upon the Court’s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 9) is GRANTED. 2) The Commissioner’s determination that Plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED. 3) This matter is REMANDED to the Commissioner, without a directed finding of disability, for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of 42 U.S.C. § 405 (g). 4) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, REMANDING this matter to the Commissioner for further administrative proceedings consistent with this opinion and the oral bench decision, pursuant to sentence four of 42 U.S.C. § 405 (g) and closing this case. Dated: August 24,2020 Binghamton, New York / - Miroslav Lovric United States Magistrate Judge Northern District of New York 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 --------------------------------------------------------- 4 JEANETTE J. 5 -versus- 19-CV-795 6 ANDREW M. SAUL, COMMISSIONER OF 7 SOCIAL SECURITY 8 --------------------------------------------------------- 9 TRANSCRIPT OF TELEPHONE CONFERENCE 10 held in and for the United States District Court, Northern 11 District of New York, at the Federal Building, 15 Henry 12 Street, Binghamton, New York, on August 17, 2020, before 13 the HON. MIROSLAV LOVRIC, United States Magistrate Judge, 14 PRESIDING. [15] 16 APPEARANCES: 17 FOR THE PLAINTIFF: 18 LEGAL AID SOCIETY OF MID-NEW YORK, INC. 19 BY: ELIZABETH V. KRUPAR, ESQ. 20 Syracuse, New York [21] 22 FOR THE DEFENDANT: 23 SOCIAL SECURITY ADMINISTRATION 24 BY: DANIEL TARABELLI, ESQ. 25 Boston, MA 1 THE COURT: It is my intention now to turn to the 2 Decision and Order that I'm going to issue from this Court. 3 So I first want to start out with a short introduction as it 4 relates to this specific matter. 5 This matter was referred to me for all 6 proceedings and entry of a final judgment pursuant to the 7 Social Security Pilot Program in the Northern District of New 8 York under General Order No. 18. Also in accordance with the 9 provisions of 28 United States Code Section 636 (c). Also 10 Federal Rule of Civil Procedure 73. Additionally, Northern 11 District New York Local Rule 73.1 and then lastly by consent 12 of the parties. This action involves judicial review of an 13 adverse determination made by the Commissioner of Social 14 Security pursuant to Title 42 of United States Code Sections 15 405(g) and 1383(c). 16 In this appeal I have reviewed the following 17 materials: One, I have reviewed the Social Security 18 Administrative Record, also called the Transcript. That can 19 be found at Docket No. 8 of this docket. Included in those 20 materials, I have reviewed the Administrative Law Judge's 21 Hearing Decision and the Transcript of oral hearing. Those 22 can be found in the Administrative Transcript which I in this 23 decision will be referring to under the letter of T, as in 24 Thomas. And those items that I reviewed can be found at T.12 25 through 34 and T.35 through 78. I also carefully reviewed 1 the plaintiff's brief at Docket No. 9 and equally carefully 2 reviewed defendant's brief at Docket No. 11. I also did 3 review the other materials in the docket to become familiar 4 with this matter. Lastly, I have also taken into 5 consideration today's oral arguments presented from both 6 parties in rendering a decision in this matter and in coming 7 to a conclusion. 8 The procedural history of this case is as 9 follows: The plaintiff protectively filed for Supplemental 10 Security Income, known as SSI benefits, on March 3 of 2016 11 alleging disability beginning on November 7 of 2015. See T. 12 at 15. The application was denied initially by a notice 13 dated May 23 of 2016. See T.15 and T.130 through 135. On 14 June 29 of 2016 plaintiff requested a hearing before an 15 Administrative Law Judge, hereinafter I refer to that person 16 as an ALJ. See T.15 and T.137 through 138. The video 17 hearing was held in front of ALJ John G. Farrell on April 9, 18 2018. See T.15, T.35 through 78. Additionally, Thomas 19 Nimberger, a vocational expert, that I may refer to as a VE, 20 also testified at that hearing. At the hearing found at T.35 21 through 78 the ALJ utilized the five-step process for 22 evaluating disability claims. See T.15 through 29, and the 23 ALJ found that plaintiff was not disabled from her 24 application date through the date of the decision of June 15, 25 2018. See T.29, finding at 10. The ALJ determined because 1 she was capable of performing jobs in the national economy 2 she was therefore not disabled. See T.28, finding 9. See 3 also 20 CFR Section 416.920(a)(4)(i) through (v), describing 4 the steps in the sequential evaluation. See also 20 CFR 5 Section 416.966(b), stating if the claimant can perform work 6 in the national economy, she is not disabled. See also Frye 7 ex rel AO versus Astrue at 485 Fed Appendix 484 at 486, note 8 1, a Second Circuit 2012 case. In that case stating relevant 9 period in an SSI case is the application date through the 10 date of the decision. On June 15, 2018 the ALJ issued an 11 unfavorable, that being a not favorable decision. See T.12 12 through 34. Plaintiff requested a review of the hearing 13 decision before the Appeals Council on August 6, 2018. See 14 T.255 through 259. On May 31, 2019 the Appeals Council 15 denied the request for review, see T.1 through 6, after which 16 time the Commissioner's determination became final and this 17 appeal followed thereafter. 18 Next I point out the generally applicable law 19 that I'm required to apply in reviewing this matter. First 20 as to the disability standard. To be considered disabled a 21 plaintiff seeking disability insurance benefits or SSI 22 disability benefits must establish that she is unable to 23 engage in any substantial gainful activity by reason of any 24 medically determinable physical or mental impairment which 25 can be expected to result in death or which has lasted or can 1 be expected to last for a continuous period of not less than 2 12 months. See 42 United States Code Section 1382c(a)(3)(A). 3 In addition, the plaintiff's physical and mental impairment 4 or impairments must be of such severity that he is not only 5 unable to do his previous work but cannot, considering his 6 age, education, and work experience, engage in any other kind 7 of substantial gainful work which exists in the national 8 economy regardless of whether such work exists in the 9 immediate area in which he lives or whether a specific job 10 vacancy exists for him, or whether he would be hired if he 11 applied for work. See 42 United States Code Section 12 1382c(a)(3)(B). 13 The Commissioner uses a five-step process set 14 forth in 20 CFR Sections 404.1520 and 416.920 in order to 15 evaluate disability insurance and SSI disability claims. 16 First, the Commissioner considers whether the claimant is 17 currently engaged in substantial gainful activity. If he is 18 not, the Commissioner next considers whether the claimant has 19 a severe impairment which significantly limits his physical 20 or mental ability to do basic work activities. If the 21 claimant suffers such an impairment, the third inquiry is 22 whether, based solely on medical evidence, the claimant has 23 an impairment which meets or equals the criteria of 24 impairment listed in Appendix 1 of the regulations. If the 25 claimant has such an impairment, the Commissioner will 1 consider him disabled without considering vocational factors 2 such as age, education and work experience. Assuming the 3 claimant does not have a listed impairment, the fourth 4 inquiry is whether, despite the claimant's severe impairment, 5 he has the residual functional capacity to perform his past 6 work. Finally, if the claimant is unable to perform his past 7 work, the Commissioner then determines whether there is other 8 work which the claimant can perform. See Berry v Schweiker 9 at 675 F.2d 464 at 467 , Second Circuit case, 1982. See also 10 20 CFR Sections 404.1520 and 416.920. The plaintiff has the 11 burden of establishing disability at the first four steps. 12 However, if the plaintiff establishes that her impairment 13 prevents her from performing her past work, the burden then 14 shifts to the Commissioner to prove the final step. 15 Scope of review in examining this matter is as 16 follows: In reviewing a final decision of the Commissioner, 17 a court must determine whether the correct legal standards 18 were applied and whether the substantial evidence supported 19 the decision. See Selian versus Astrue at 708 F.3d at 417. 20 See also Brault v Social Security Administration Commissioner 21 at 683 F.3d 443 at 448 , Second Circuit 2012 and also see [22] 42 USC Section 405 (g). Substantial evidence is such relevant 23 evidence as a reasonable mind might accept as adequate to 24 support a conclusion. See Talavera versus Astrue at 697 F.3d 25 145 at 151, a Second Circuit 2012 case. It must be more than 1 a scintilla of evidence scattered throughout the 2 administrative record. However, this standard is a very 3 deferential standard of review, even more so than the clearly 4 erroneous standard. See Brault, 683 F.3d at 448 . 5 A reviewing Court may not substitute its 6 interpretation of the administrative record for that of the 7 Commissioner, if the record contains substantial support for 8 the ALJ's decision. See Rutherford V Schweiker, 655 F.2d 60 9 at 62, Second Circuit 1982. In reviewing a final decision by 10 the Commissioner under 42 USC Section 405 , the Court does not 11 determine de novo whether a plaintiff is disabled. See [12] 42 USC Sections 405 (g) 1383(c)(3), and also see Wagner v 13 Secretary of Health and Human Services at 906 F.2d 856 at 14 860, a Second Circuit 1990 case. Rather, the Court must 15 examine the Administrative Transcript to ascertain whether 16 the correct legal standards were applied and whether the 17 decision is supported by substantial evidence. See Shaw v 18 Chater, 221 F.3d 126 at 131 , a Second Circuit 2000 case. See 19 Schaael versus Apfel, 134 F.3d 496 at 500 to 501, a Second 20 Circuit 1998 case. Substantial evidence is evidence that 21 amounts to more than a mere scintilla and it has been defined 22 as such relevant evidence as a reasonable mind might accept 23 as adequate to support a conclusion. See Richardson versus 24 Perales, 402 United States 389 at 401, 1971. If supported by 25 substantial evidence, the Commissioner's factual 1 determinations are conclusive and it is not permitted for the 2 courts to substitute their analysis of the evidence. 3 Rutherford v Schweiker, 685 F.2d 60 at 62 , Second Circuit 4 1982. In other words, this Court must afford the 5 Commissioner's determination considerable deference, and may 6 not substitute its own judgment for that of the Commissioner, 7 even if it might justifiably have reached a different result 8 upon a de novo review. Valente versus Secretary of Health 9 and Human Services, 733 F.2d 1037 at 1041 , Second Circuit 10 1984. 11 An ALJ is not required to explicitly analyze 12 every piece of conflicting evidence in the record. See 13 Mongeur v Heckler, 722 F.2d 1033 at 1040 , Second Circuit 14 1983. See also Miles v Harris, 645 F.2d 122 at 124 , Second 15 Circuit 1981. However, the ALJ cannot pick and choose 16 evidence in the record that supports his conclusions. See 17 Cruz versus Barnhart, 343 F. Supp 2d 218 at 224, Southern 18 District of New York 2004. See also Fuller versus Astrue, 19 No. 09-CV-6279. It can be found at 2010 Westlaw 5072112 20 at 6. A Western District of New York, December 6, 2010 21 decision. 22 I highlight the following facts in this case: 23 Plaintiff was born on September 10, 1963 and has a high 24 school diploma and completed two years of college. See T.284 25 and T.289. Plaintiff applied for Supplemental Security 1 Income, also known as SSI, on March 3, 2016. See T.129. She 2 alleged that she was disabled due to a head injury, back 3 problems, including a bulging disc, depression, carpal tunnel 4 syndrome, difficulty seeing and hearing, sleeping problems 5 and issues with concentration and comprehension. See T. at 6 288. For additional facts see the ALJ's decision and 7 transcript of oral hearing at T.12 through 34 and T.35 8 through 78. 9 I now turn to the summary of the ALJ's 10 findings and decisions. I start with, in issuing his 11 decision the ALJ indicated that the claimant has not engaged 12 in substantial gainful activity since March 3, 2016, the 13 application date. See 20 CFR 416.971, et seq. The ALJ 14 continued and stated the claimant has the following severe 15 impairments: Degenerative changes in the cervical spine, 16 degenerative disc disease in the lumbar spine with disc 17 herniation, spondylolisthesis and spondylolysis, post 18 concussive syndrome, attention deficit hyperactivity 19 disorder, major depressive disorder, panic disorder and 20 posttraumatic stress disorder. See 20 CFR 416.920(c). 21 The ALJ further noted the claimant does not 22 have an impairment or combination of impairment that meets or 23 medically equals the severity of one of the listed 24 impairments in 20 CFR Part 404, Subpart P, Appendix 1. See 25 20 CFR 416.920(d) and also 416.925 and lastly 416.926. 1 The ALJ concluded also that after careful 2 consideration of the entire record, the ALJ found that the 3 claimant has the residual functional capacity to perform 4 light work as defined in 20 CFR 416.967(b), except that 5 claimant can occasionally perform postural activities; 6 claimant can perform simple routine tasks; claimant can 7 occasionally interact with co-workers and the public; 8 claimant can tolerate infrequent workplace changes that are 9 gradually introduced and claimant cannot perform 10 production-paced work. 11 The ALJ went further on to state the claimant 12 is unable to perform any past relevant work, noting 20 CFR 13 416.965. The ALJ further stated the claimant who was born on 14 September 10, 1963 and was 52 years old which is defined as 15 an individual closely approaching advanced age on the date 16 the application was filed, noting 20 CFR 416.963. The ALJ 17 further stated that the claimant has at least a high school 18 education and is able to communicate in English, noting 19 20 CFR 416.964. The ALJ also indicated that transferability 20 of job skills is not material to the determination of 21 disability because using the Medical-Vocational Rules as a 22 framework supports a finding that the claimant is not 23 disabled, whether or not the claimant has transferable job 24 skills. ALJ noted SSR 82-41 and 20 CFR Part 404, Subpart P, 25 Appendix 2. 1 The ALJ further stated considering the 2 claimant's age, education, work experience and residual 3 functional capacity, there are jobs that exist in significant 4 numbers in the national economy that the claimant can 5 perform. The ALJ noted 20 CFR 416.969 and 416.969(a). The 6 ALJ also stated the claimant has not been under a disability 7 as defined in the Social Security Act since March 3, 2016, 8 the date the application was filed, noting 20 CFR 416.920(g). 9 Lastly, the ALJ, the ALJ's decision and 10 conclusion is that based on the application for Supplemental 11 Security Income protectively filed on March 3, 2016, the 12 claimant is not disabled under Section 1614(a)(3)(A) of the 13 Social Security Act. 14 I turn next to the three issues that I believe 15 are in contention on this appeal: First, the issue of 16 whether the ALJ properly assessed plaintiff's subjective 17 symptoms; second, whether the ALJ properly weighed the 18 medical evidence; and then whether the substantial evidence, 19 whether substantial evidence supports the ALJ's step five 20 finding, specifically whether the ALJ's error in failing to 21 discuss plaintiff's borderline age situation is harmless 22 error. 23 I now turn to the first three issues in 24 contention; that is, whether the ALJ properly assessed 25 plaintiff's subjective symptoms. I find the ALJ did properly 1 assess the plaintiff's testimony. The ALJ stated that after 2 careful consideration of the evidence, I find that the 3 claimant's medically determinable impairments could 4 reasonably be expected to cause the alleged symptoms. The 5 ALJ further stated, however, I conclude that her statements 6 concerning the intensity, persistence and limiting effects of 7 her symptoms are not fully consistent with the evidence. The 8 ALJ further stated, in making this finding I have considered 9 the factors set forth in 20 CFR 416.929. This can be found 10 at T.21. The ALJ thereafter went on to analyze and conclude 11 that, quote, the medical evidence is not consistent with the 12 severity of symptoms and the degree of limitations that 13 preclude claimant from performing any work or clinical 14 findings, diagnostic tests and the treatment that claimant 15 has received provide a reasonable basis to conclude that 16 claimant has been capable of performing a range of light work 17 since the application date of March 3, 2016. See T.21. 18 The ALJ further observed on October 30, 2015 19 claimant was in a car accident. While she initially 20 exhibited few symptoms, she went to the emergency room the 21 following day complaining of headache and pain in her neck, 22 right shoulder, back, right hip and right foot. The ALJ 23 noted diagnostic testing performed that day was unremarkable. 24 See T.21. 25 The ALJ thereafter methodically and thoroughly 1 summarized the tests and treatment plaintiff received. See 2 T.21 through 26. At the conclusion of his detailed analysis 3 and summary, the ALJ stated that, quote, based upon my 4 consideration of factors set forth in 20 CFR 416.929, I 5 conclude that claimant's statements concerning the intensity, 6 persistence and limiting effects of her symptoms are not 7 fully consistent with the evidence. The ALJ further stated, 8 the opinion evidence is not consistent with the severity of 9 symptoms and degree of limitations that would preclude 10 claimant from performing any work. 11 Furthermore, the ALJ then analyzed the opinion 12 evidence of Dr. Frye, Dr. Cole, Dr. Santoro and Dr. Bruno. 13 In addition to the extensive analysis performed by the ALJ, 14 the Court was able to glean the rationale of the ALJ's 15 decision. Lastly, this Court finds defendant's arguments on 16 this to be persuasive and also adopts those arguments. 17 A second issue of contention is whether the 18 ALJ properly weighed the medical evidence. This Court finds 19 that the ALJ did properly weigh the opinion of Dr. Frye for 20 the reasons stated in defendant's brief and memorandum of 21 law. I find that argument in the defendant's brief to be 22 persuasive and I do adopt it. I also find that the ALJ did 23 not commit an error as to this issue. Additionally, a 24 searching review of the record assures this Court that the 25 medical evidence was properly weighed. The ALJ didn't adopt 1 a portion of Dr. Frye's opinion because it conflicted with 2 medical evidence the ALJ mentioned in the paragraphs 3 immediately preceding his discussion of Frye's opinion, which 4 was the same evidence he used to discount plaintiff's 5 subjective symptoms. See T.21 through 26. See also Fifer v 6 Commissioner of Social Security, No. 14-14584, that can be 7 found at 2016 Westlaw 1399254 at 2, an Eastern District of 8 Michigan, April 11, 2016 case. Wherein it states, 9 explanation must be viewed against the backdrop of the 10 discussion of the treating records that preceded it. I point 11 out that this discussion viewed as a whole is not so obscure 12 as to make the judicial review contemplated by the Social 13 Security Act a perfunctory process. See Colorado Interstate 14 Gas Company v Federal Power Commissioner, 324 US 581 at 595 , 15 1945, finding that the path which the agency followed can be 16 discerned even though its findings were quite summary and 17 incorporated by reference the evidence upon which it relied. 18 See Rice v Barnhart, 384 F.3d 363 at 370, note 5 , Seventh 19 Circuit 2004. It is proper to read the ALJ's decision as a 20 whole and it would be a needless formality to have the ALJ 21 repeat substantially similar factual analyses. Based on all 22 of that, I do find the ALJ properly weighed the opinion of 23 Dr. Frye. 24 I next turn to the last issue of contention in 25 this case and that is whether the substantial evidence 1 supports the ALJ's step five finding. At step five of the 2 disability analysis the burden shifts to the ALJ to 3 demonstrate that there is other work in the national economy 4 that plaintiff can perform. See Poupore versus Astrue, 566 5 F.3d 303 at 306 , Second Circuit 2009. If the ALJ utilizes a 6 vocational expert, also known as a VE, at this hearing, the 7 VE is generally questioned using a hypothetical question that 8 incorporates plaintiff's limitations. See Aubeuf v 9 Schweiker, 649 F.2d 107 at 114 , Second Circuit 1981. The ALJ 10 may rely on a VE's testimony regarding the availability of 11 work as long as the hypothetical facts the expert is asked to 12 consider are based on substantial evidence and accurately 13 reflect the plaintiff's limitations. See Calabrese v Astrue, 14 385 Fed Appendix 274 at 276, Second Circuit 2009. Where the 15 hypothetical is based on an RFC analysis supported by 16 substantial facts, the hypothetical is proper. 17 At step five the ALJ had to demonstrate that 18 plaintiff was capable of performing jobs that existed in 19 significant numbers in the national economy. See 20 CFR 20 Section 404.1520(a)(4)(v). A borderline age situation exists 21 in this case. The regulations direct that the age category 22 that applies to a plaintiff during the period for which she 23 claims disability be used to determine whether or not 24 plaintiff is disabled. See Pennock versus Commissioner of 25 Social Security, No. 7:14-CV-1524. That can be found at 2016 1 Westlaw 1128126 at 10, a Northern District of New York, 2 February 23, 2016 Report and Recommendation adopted by 2016 3 Westlaw 1122065, Northern District New York, March 22, 2016, 4 and that case citing 20 CFR Sections 404.1563(b) and 5 416.936(b). The regulations make clear, however, that the 6 age categories are not to be applied mechanically in a 7 borderline situation such as where a claimant is within a few 8 days or months of obtaining an older age category and using 9 the older age category would result in a determination or 10 decision that the plaintiff is disabled. See Pennock, 2016 11 Westlaw 1128126 at 10, citing therein 20 CFR Sections 12 404.1563(b) and 416.936(b). Courts within the Second Circuit 13 have concluded that three months constitutes the outer limits 14 of a few months for the purposes of borderline age. See 15 Pennock, 2016 Westlaw 1128126 at 11, collecting cases 16 regarding periods of time that were found to be borderline or 17 not, but see also Kathy H v Commissioner of Social Security, 18 19-CV-0684. That can be found at 2020 Westlaw 3960846 at 19 pages 12 through 13, and that is a Northern District of New 20 York, July 13, 2020 case issued by Magistrate Judge Baxter, 21 concluding that consistent with agency guidance and several 22 other District Court cases from within the Second Circuit, 23 that up to six months from the next age category may be 24 borderline. In evaluating whether to apply the older age 25 category the agency considers the overall impact of all the 1 factors in your case. See 20 CFR Sections 404.1563(b) and 2 416.963(b). If a claimant's age is borderline and the ALJ 3 fails to consider whether the higher age category should be 4 used, remand is warranted so long as a higher age category 5 would entitle the claimant to benefits. See Woods v Colvin, 6 218 Fed Supp 3d 204 at 207, Western District New York, 2016. 7 See also Koszuta v Colvin, No. 14-CV-0694. That can be found 8 at 2016 Westlaw 824445 at 2, a Western District New York, 9 March 3, 2016 case and standing for the proposition that 10 finding remand appropriate where the ALJ failed to consider 11 the borderline age situation, which would have required him 12 to consider and make additional findings on issues such as 13 transferability of work skills in order to determine whether 14 plaintiff was disabled. See also Jerome versus Astrue, 15 No. 2:08-CV-0098. That can be found at 2009 Westlaw 3757012, 16 at 13, a District of Vermont, November 6, 2009 case standing 17 for the proposition, finding the ALJ's mechanical application 18 of the Medical-Vocational Guidelines unsupported by 19 substantial evidence where he failed to consider whether a 20 borderline age situation existed. 21 As to the borderline age issue in this matter, 22 the ALJ in his written decision stated that the claimant was 23 an individual closely approaching advanced age on the date 24 the application was filed. See T.27. The ALJ in this case 25 said nothing more about this borderline age situation and 1 conducted no further analysis in this case. At the time of 2 the ALJ's decision claimant was two months and twenty-six th 3 days away from her 55 birthday which would take her into 4 the advanced age, which would take her into the advanced age 5 grid category. This is within the Second Circuit's three 6 month rule or six month rule with cases that I previously 7 mentioned within the Second Circuit courts. 8 In considering the grids, the ALJ used an RFC 9 of light work. The ALJ then considered Medical-Vocational 10 Rule 202.14, finding that the grids would dictate a finding 11 of not disabled if plaintiff had the RFC to perform a full 12 range of light work. 13 Rule 202.14 for a light work RFC assumes a 14 person closely approaching advanced age with a high school or 15 more education, and skilled or semi-skilled with the skills 16 not transferable, which dictates a not disabled finding. See 17 CFR Part 404, Subpart P, Appendix 202.14. 18 However, if one considers that the same 19 individual is of advanced age, there are two potentially 20 relevant rules. The first assumes an individual with a high 21 school or more education that does not provide for entry into 22 skilled work, and skilled or semi-skilled but skills not 23 transferable. See 202.06. This rule dictates a finding of 24 disabled. 25 The second rule assumes an individual with a 1 high school or more education that does provide for entry 2 into skilled work, and skilled or semi-skilled but not 3 transferable. See 202.08. This rule dictates a finding of 4 not disabled. 5 The ALJ never specifically considered whether 6 plaintiff was close enough to the next age category on her 7 date last insured to use the advanced age grid. Because 8 there was no consideration of whether to use the advanced age 9 category, there was also no consideration of whether 10 Rule 202.06 or 202.08 would have applied to plaintiff in this 11 case. If Rule 202.06 applied, the grid would, the grid would 12 have dictated a finding of disability even without the VE's 13 evidence. 14 In light of the ALJ's failure to consider 15 whether a borderline age situation existed in plaintiff's 16 case, in this case I find that remand is appropriate. See 17 Spease v Saul, 220 Westlaw 3566902 at 10, District of 18 Connecticut, July 1, 2020 case. Concluding that because the 19 ALJ, because the ALJ failed to consider whether a borderline 20 age situation existed in the plaintiff's case, remand was 21 appropriate. See also Goncalves versus Berryhill, 22 17-CV-1830. That can be found at 2018 Westlaw 6061570 at 6, 23 a District of Connecticut, November 20, 2018 case, and in 24 that case concluding the same and remanding to the ALJ for 25 proper consideration of claimant's borderline age situation. 1 Further, see Johnson versus Berryhill, 17-CV-1651. That's 2 found at 2019 Westlaw 1430242 at 12, District of Connecticut, 3 March 29, 2019 case and therein remanding for the ALJ to 4 consider whether a borderline age situation existed in the 5 first place. Also, see Amato versus Berryhill, 16-CV-6768. 6 That can be found at 2019 Westlaw 4175049 at 5, a Southern 7 District New York, September 3, 2019 case and therein 8 remanding because, quote, given the fact that the ALJ 9 explicitly failed to consider Amato's borderline age 10 situation, this Court cannot complete this review without 11 some showing as to the Commissioner's consideration of 12 applying the higher age category which she indisputably is 13 required to do, end of quote. 14 I will thus, in this particular case, remand 15 this case to the ALJ to consider whether a borderline age 16 situation exists and, if so, to determine under the 17 circumstances of this case whether to use plaintiff's 18 chronological age or to evaluate her using the next higher 19 age category. 20 It is therefore my decision based on the 21 findings as set forth herein on the record that plaintiff's 22 motion for judgment on the pleadings, Docket No. 9, is 23 granted. The Commissioner's motion for judgment on the 24 pleadings, Docket No. 11, is denied and I am remanding this 25 matter to the Commissioner for further administrative 1 proceedings consistent with this opinion and decision 2 pursuant to sentence four of Title 42 United States Code 3 Section 405(g). 4 All right. That constitutes the Court's 5 decision. As I indicated, I will issue a short order and I 6 will attach in the docket, with that order, the transcript of 7 only my Decision and Order as I have just rendered on the 8 record and delivered on the record. 9 Ms. Krupar, is there anything else from the 10 plaintiff? 11 MS. KRUPAR: No, your Honor. Thank you for your 12 time. 13 THE COURT: Okay. Mr. Tarabelli? 14 MR. TARABELLI: No. Thank you, your Honor. 15 THE COURT: All right. Thank you both. As I 16 indicated earlier, thank you both for excellent briefs and 17 very good arguments and the Court will stand adjourned and 18 have a great rest of the week and be safe and healthy out 19 there. Thank you both. 20 MS. KRUPAR: Thank you. 21 THE COURT: All right. 22 (Court stands adjourned) [25] 1 CERTIFICATE OF OFFICIAL REPORTER [4] 5 I, VICKY A. THELEMAN, Federal Official 6 Realtime Court Reporter, in and for the United 7 States District Court for the Northern District of 8 New York, do hereby certify that pursuant to Section 9 753, Title 28 United States Code that the foregoing 10 is a true and correct transcript of the 11 stenographically reported proceedings held in the 12 above-entitled matter and that the transcript page 13 format is in conformance with the regulations of the 14 Judicial Conference of the United States. [16] 17 /s/ Vicky A. Theleman 18 VICKY A. THELEMAN, RPR, CRR 19 US District Court - NDNY [21] 22 Dated: August 21, 2020.