Opinion
CIVIL ACTION No. 16-2000
02-27-2017
JOSE TAVALES, Plaintiff v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant
REPORT AND RECOMMENDATION
Jose Tavales ("Plaintiff"), seeks judicial review, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner"), denying his claim for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act. Plaintiff has filed a brief in support of his request for review, the Commissioner has responded to it, and Plaintiff has filed a reply. For the reasons set forth below, it is recommended that Plaintiff's Request for Review be granted and this case remanded for further proceedings consistent with this court's recommendation.
I. PROCEDURAL HISTORY
The court has reviewed and considered the following documents in analyzing this case: Plaintiff's Brief and Statement of Issues in Support of his Request for Review ("Pl. Br."), Defendant's Response to Request for Review of Plaintiff ("Resp."), Plaintiff's Brief in Reply to Defendant's Brief ("Reply"), and the administrative record ("R.").
On March 8, 2010, Plaintiff filed applications for DIB and SSI alleging disability, since November 20, 2009 on his DIB claim, and May 27, 2009 on his SSI claim, based upon physical and mental health impairments. R. 43. His claims were denied initially, so Plaintiff requested a hearing. Id. On May 11, 2011, a hearing was held before Deborah Mande, Administrative Law Judge, sitting in Philadelphia. Id. Plaintiff, represented by Rita Bonner, Esquire and assisted by a Spanish interpreter, and Nancy Harter, a vocational expert ("the VE"), testified at that hearing. R. 137-54. On May 20, 2011, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 43-53. The Appeals Council denied Plaintiff's request for review, and Plaintiff commenced a civil action in this court on January 29, 2013. R. 594.
The Social Security Regulations provide the following five-step sequential evaluation for determining whether or not an adult claimant is disabled:
1. If the claimant is working, doing substantial gainful activity, a finding of not disabled is directed. Otherwise proceed to Step 2. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
2. If the claimant is found not to have a severe impairment which significantly limits his physical or mental ability to do basic work activity, a finding of not disabled is directed. See 20 C.F.R. §§ 404.1520(c), 416.920(c).
3. If the claimant's impairment meets or equals criteria for a listed impairment or impairments in Appendix I of Subpart P of Part 404 of 20 C.F.R., a finding of disabled is directed. Otherwise proceed to Step 4. See 20 C.F.R. §§ 404.1520(d), 416.920(d).
4. If the claimant retains the residual functional capacity to perform past relevant work, a finding of not disabled is directed. Otherwise proceed to Step 5. See 20 C.F.R. §§ 404.1520(f), 416.920(f).
5. The Commissioner will determine whether, given the claimant's residual functional capacity, age, education and past work experience in conjunction with criteria listed in Appendix 2, he is or is not disabled. See 20 C.F.R. §§ 404.1520(g), 416.920(g).
In the interim, on July 8, 2011, Plaintiff filed subsequent applications for DIB and SSI. R. 594. Following a hearing on April 10, 2013, on May 30, 2013, Jennifer M. Lash, Administrative Law Judge, issued a favorable decision, finding Plaintiff disabled. R. 594; R. 688-93. Specifically, ALJ Lash determined that a finding of disabled was appropriate under Medical-Vocational Rule 201.17, in that (1) Plaintiff retained the residual functional capacity to perform a range of sedentary work, (2) no jobs existed in the national economy that Plaintiff could perform, (3) Plaintiff was illiterate and unable to communicate in English, and (4) Plaintiff's past work was unskilled. R. 594; R. 691-93.
On July 3, 2013, the District Court remanded the case arising from the initial denial of benefits for further proceedings in light of the contradictory findings as to disability in ALJ Lash's decision. R. 594, 655. On November 26, 2013, the Appeals Council remanded ALJ Lash's decision, noting the following: (1) her finding as to Plaintiff's illiteracy and inability to communicate in English was inconsistent with ALJ Mande's previous findings; (2) her decision did not reference record evidence in support of her finding that Plaintiff was illiterate; and (3) her reliance on the Medical Vocational Rule indicating that Plaintiff's past work was unskilled was inconsistent with ALJ Mande's decision because the VE in that case testified that Plaintiff's past work as a butcher was skilled. Thus, the Appeals Council determined that ALJ Lash's decision finding Plaintiff disabled was not supported by substantial evidence. R. 595. The cases were consolidated for a new hearing addressing the entire period of alleged disability at issue. R. 653.
On March 20, 2014, a second hearing was held before ALJ Lash. R. 611-646. Plaintiff, represented by Nicholas Feden, Esquire, and Christine A. Carrozza, a VE, testified at the hearing. A Spanish interpreter, Michelle Galasso, was also present. R. 611-46. On May 29, 2014, the ALJ, using the sequential evaluation process for disability, issued an unfavorable decision. R. 594-605. On March 3, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's findings the final determinations of the Commissioner. R. 574-78. This case was referred to the undersigned by the Honorable Eduardo C. Robreno, under the authority of 28 U.S.C. § 636(b)(1)(B), for preparation of a Report and Recommendation.
II. FACTUAL BACKGROUND
A. Personal History
Plaintiff, born on October 5, 1964, was forty-five (45) years old on the alleged disability onset date and forty-nine (49) years old at the time of the last administrative hearing. R. 603. He has past relevant work as a butcher, short order cook, cabinet maker, and cow milker. R. 603.
The ALJ admitted testimony from the May 2011 and April 2013 hearings, in light of the fact that the March 2014 hearing encompassed the entire period at issue. R. 614. The ALJ does not reference those hearings in her decision, and their contents are, therefore, not set forth at length herein. However, where helpful, summaries of relevant portions of those hearings are provided.
At the time of the hearing, Plaintiff was 5 feet 6 inches tall and weighed 356 pounds. R. 616. He was living with his girlfriend, who received disability for physical and mental impairments. Id. Plaintiff does not have a driver's license and relies on public transportation. R. 617. He obtained a GED in Puerto Rico, but testified that he speaks and reads little English. Id. He is able to write his name but cannot complete paperwork in English. R. 618. Social Security provided Plaintiff's only means of support, his welfare having been terminated in December 2013. Id.
Treatment notes from Hispanic Community Counselling Services state that Plaintiff was born in Puerto Rico to loving, well-educated parents. He attended school through 11th grade, when he succumbed to the bad influence of his friends and began dealing drugs. He reportedly did so for 7 years, before he was jailed for 15 years, until his release in 2006. R. 399, 400, 403. Notably, the time-line reflected in Plaintiff's treatment notes conflicts with Plaintiff's work history, and his statement at the administrative hearing that he first moved to the Philadelphia area in 1991, returned to Puerto Rico in 1992, moved to the Poconos in 2002, and returned to Philadelphia in 2003. R. 620.
Plaintiff last worked in November 2009, as a butcher at North Broad Foods, where he cut and repackaged meat and served customers who spoke Spanish. R. 621-22. He had worked as a butcher for a short period in 2007. R. 623. Other past employment includes supermarket handyman (2008); grill chef at Ruby Tuesday's (2007); cabinet maker (2006), a job that required lifting up to 25 pounds and standing and walking all day, and measuring and cutting wood with a wood cutter; cow ordainer (milker) in Puerto Rico (2002), a job that required Plaintiff to bring cows in from the field, hook up milking machines, and clean milk containers. This job required lifting items up to 40 pounds and standing and walking all day. R. 622-28.
At the May 11, 2011 hearing, Plaintiff testified that he had quit his job at North Broad Foods following hospitalization for a problem with his pancreas; he had missed work both before and after the hospitalization. R. 144.
The ALJ noted that she referred to Exhibit 9D, a Work History Assistant Tool, to elicit this testimony from Plaintiff. That document references other short term positions that Plaintiff could not recall at the hearing. See R. 202, 626-27.
Plaintiff's counsel elicited testimony from him, primarily about his language skills. On a scale of 1 (poor) to 10 (excellent), Plaintiff rates his ability to understand spoken English at between 2 and 3. He has some understanding when he visits doctors and hospitals, but his girlfriend generally accompanies him to interpret. R. 629. Similarly, when working, Plaintiff had some understanding of what was spoken to him, but relied on Spanish-speaking co-workers to explain what he did not understand. R. 630. Plaintiff rates his ability to speak English at 3 to 4. Id. He confirmed that he believes he speaks English better than he understands it. R. 631. Plaintiff rates his ability to write in English at a 1. R. 632. When he worked, if he needed to write down any information, he wrote it in Spanish and asked a co-worker to translate his writings to English. Id. He rated his ability to read in English at 0. Id. At work, Spanish-speaking co-workers would translate written English to Spanish when necessary, though this was not a frequent occurrence. Id.
Neither the ALJ nor Plaintiff's counsel elicited testimony regarding Plaintiff's physical and mental impairments at the 2014 hearing. At the 2011 hearing, Plaintiff testified that he experiences frequent back pain that radiates down his legs, and has had surgery on his knee that was only partially successful, requiring subsequent cortisone injections. He has been prescribed Vicodin and Percocet for back and knee pain, both of which cause sleepiness. As a result of his back and knee pain, Plaintiff testified that he requires a home health aide to assist him with dressing and bathing, housework, and shopping. He is able to sit or stand for only 15 minutes before he needs to change position to relieve pain. He requires a cane for support when standing and walking. Frequently (every week or two) he must remain in bed all day due to pain. R. 144-49. As to his mental impairments, Plaintiff reports seeking therapy at Hispanic Community Counseling after he stopped working to address feelings of anxiety. R. 147-48. He was prescribed Klonopin for anxiety and Seroquel to help him sleep. R. 148. He reported that therapy was helpful. Id.
Plaintiff confirmed that, at hospitals and doctors' offices, his girlfriend interpreted for him; when she was unavailable, he requested an interpreter. R. 631-32.
C. Vocational Testimony
The VE described Plaintiff's past work as a butcher as heavy work, performed as medium and skilled, SVP: 6. R. 634. The VE noted, however, that the work would reach SVP: 6 only after a year of experience. She opined also that if Plaintiff had performed such work for 10 months, in all likelihood, he had reached SVP: 6, but that 6 or 9 months would not be enough. Id. Plaintiff's work at Ruby Tuesday's as a short order cook was light, semi-skilled work, SVP: 3. R. 634-35. The VE described Plaintiff's work as a cabinet maker as medium, skilled work, SVP: 6. R. 635. Plaintiff's work as a cow ordainer or milking machine operator was medium, unskilled work, SVP: 2. Id.
"Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds." 20 C.F.R. §§ 404.1567(d); 416.967(d).
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. §§ 404.1567(c); 416.967(c).
"Skilled work requires qualification in which a person uses judgment. . . . [S]killed jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity." 20 C.F.R. §§ 404.1568(c); 416.968(c).
The Directory of Occupational Titles ("DOT") lists a specific vocational preparation ("SVP") for each occupation. "SVP refers to the training that would be needed for a position." Meloni v. Colvin, 109 F.Supp.3d 734, 742 (M.D. Pa. 2015). "Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT." SSR 00-4P, 2000 WL 1898704, at *3 (2000).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. §§ 404.1567(b); 416.967(b).
"Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks." 20 C.F.R. §§ 404.1568(b); 416.968(b).
"Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength . . . [a] person does not gain work skills by doing unskilled jobs." 20 C.F.R. §§ 404 1568(a); 416.968(a).
The ALJ asked the VE to consider the following individual of the same age, education, and work background as Plaintiff:
At least able to communicate in English. . . . can lift and carry 10 pounds, stand and walk two hours, and sit six hours in an eight hour work day with occasional balancing, stooping, crouching, and climbing of ramps and stairs, no crawling, kneeling, or climbing of ladders, ropes, or scaffolds. Must avoid frequent exposure to fumes, odors, dust, gases, and poor ventilation. Must avoid all exposure to hazards, including moving machinery, and unprotected
heights and can perform routine repetitive tasks with no public interaction.R. 636. The ALJ inquired whether any unskilled occupations would be available for that individual. The VE responded that the positions would be sedentary and identified stuffer (of, for example, toy products, quilting products, supporting products) (417 jobs available locally, 37,000 nationally); table worker (described as a sedentary inspector of small parts) (516 jobs available locally, 46,000 nationally); and sorter of agricultural products (516 jobs available locally, 46,000 nationally). R. 636-37. The VE confirmed that she had identified a representative sampling of jobs available with a reasoning level of 2 or less, and that her testimony was consistent with the DOT. R. 637.
The ALJ then asked the VE to consider the same hypothetical individual, with the same residual functional capacity, but further limited in that "the individual requires the use of a cane as needed throughout the work day and can have no more than occasional interaction with supervisors and coworkers." Id. The VE opined that unskilled positons, including those previously identified, would be available, and explained that because they were performed seated, the use of a cane would be allowable; these jobs typically did not require more than occasional contact with coworkers and supervisors. R. 637-38. The VE clarified that the DOT does not address the use of a cane, such that her opinion was based on professional experience. R. 638.
The ALJ also inquired of the VE whether the jobs identified could be performed by an individual who could not communicate in English. Id. The VE stated that they could, explaining that the jobs presented simple routines, were at reasoning levels 1 and 2, and language level 1 (representing a first through third grade language requirement). Moreover, the routines could be taught through short, visual demonstrations. Id. To fulfill the language requirement, the VE noted that the worker needed the ability to read and understand, as well as to speak, at the defined level. R. 639.
The ALJ's third hypothetical individual:
Can lift and carry 10 pounds occasionally, two to three pounds frequently, stand and walk two hours in an eight hour work day, requires a sit stand at will option, with . . . occasional balancing and stooping. . . . With no kneeling or climbing and occasional crouch. Must avoid frequent exposure to poor ventilation, unprotected heights, moving machinery, vibration, temperature extremes, wetness, dust, fumes, odors, and gases and can perform routine repetitive tasks with no public interaction and occasional interaction with coworkers and supervisors.R. 639-40. The VE opined that this individual could perform the same sedentary, unskilled jobs previously identified, and confirmed that they generally required the ability to lift two to three pounds. Further, she also noted that, in her experience, these jobs, though performed seated, provided enough flexibility to accommodate the ALJ's sit/stand limitation. R. 640. Additionally, the use of a cane would not interfere with performance of these jobs. R. 640-41.
Plaintiff's counsel questioned the VE about the parameters of the language requirements of the jobs identified. The VE responded that the first through third grade skills required "very basic reading." R. 641. She did not know whether the DOT specifically addressed the language requirement. She agreed that command of some vocabulary - that of less than a third-grader - would be necessary, but stated that the jobs themselves involved very little reading, thus, while the competency might require a certain reading level, the actual job would not. Id. She did not agree with counsel's statement that inability to read at a first through third grade level would preclude performance of the identified jobs, according to the DOT. Id. The VE explained that, though some employers might require a high school diploma, unskilled work does not include educational requirements, but, rather, revolved around the actual duties of the job. R. 641-42. She noted that level 1 is the lowest language rating, and stated that, even where an individual's reading level fell below that of a first through third grader, the competency of the individual and the requirements of the job and the employer would determine whether a particular individual was hired for a job, not that individual's language abilities. R. 643.
III. THE ALJ'S FINDINGS
In her decision, the ALJ issued the following findings:
1. [Plaintiff] meets the insured status requirements of the Social Security Act through May 31, 2010.
2. [Plaintiff] has not engaged in substantial gainful activity since November 20, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Since November 20, 2009, [Plaintiff] has the following severe impairments: obesity; left ankle/knee disorders; osteoarthritis; sleep apnea; disorders of the back; an affective disorder; impulse control disorder; and a personality disorder (20 CFR 404.1520(c) and 416.920(c)).
4. Since November 20, 2009, [Plaintiff] does not have any impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix I (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that since November 20, 2009, [Plaintiff] has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except (1) lift and carry 10 pounds occasionally and 2-3 pounds frequently; (2) stand and walk two hours in an eight our workday; (3) requires a sit/stand at will option with occasional balancing, crouching, and stooping with no kneeling or climbing; (4) must avoid frequent exposure to poor ventilation, unprotected heights, moving machinery, vibration, temperature extremes, wetness, dust , fumes, odors, and gases; (5) requires the use of a cane as needed throughout the workday; and (6) can perform routine, repetitive tasks with no public interaction and occasional interaction with supervisors and co-workers.
6. Since November 20, 2009, [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).R. 597-99, 603-05.
7. [Plaintiff] was born on October 5, 1964 and was 45 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. [Plaintiff] has a limited education and is able to communicate in English. (20 CFR 404.1564 and 416.964).
9. [Plaintiff] has no transferable job skills (20 CFR 404.1568 and 416.968).
10. Considering [Plaintiff's] age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform since November 20, 2009 (20 CFR 404.1569, 404.1569(a), 404.1568(d), 416.969, and 416.969(a)).
11. [Plaintiff] has not been under a disability, as defined in the Social Security Act, from November 20, 2009, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
IV. DISCUSSION
A. Standard of Review
Judicial review of the Commissioner's final decision is as follows. The Commissioner's findings of fact will not be disturbed, if they are supported by substantial evidence. Poulos v. Comm'r of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). Substantial evidence is not "a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation omitted). It is more than a mere scintilla of evidence but may be less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Overall, this test is deferential to the ALJ and the court should affirm the ALJ's findings of fact that are supported by substantial evidence, even when the court, acting de novo, might have reached a different conclusion. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986), cert. denied, 482 U.S. 905 (1987). Indeed, the court is not permitted to weigh the record evidence. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). On the other hand, the Commissioner's legal conclusions are subject to de novo review. Poulos, 474 F.3d at 91; Schaudeck, 181 F.3d at 431.
B. Burden of Proof in Disability Proceedings
In order to be found "disabled" under the Act, Plaintiff must carry the initial burden of demonstrating that he is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a); § 416.905(a). Plaintiff may establish a disability through: (1) medical evidence meeting one or more of the serious impairments detailed in 20 C.F.R., Part 404, Subpart P, Appendix 1; or (2) proof that the impairment is severe enough that Plaintiff cannot engage in any type of "substantial gainful work which exists in the national economy." Heckler v. Campbell, 461 U.S. 458, 460 (1983); 42 U.S.C. § 423(d)(2)(A).
Under the first method, Plaintiff is considered per se disabled by meeting one of the "listed" impairments." Heckler, 461 U.S. at 460. Under the second method, Plaintiff must initially demonstrate that a medically determinable impairment prevents him from returning to his past employment. See Brown, 845 F.2d at 1214. If Plaintiff proves that his impairment results in functional limitations to performing his past relevant work, then the burden of proof shifts to the Commissioner to prove that work does in fact exist in the national economy which Plaintiff is capable of performing given his age, education, work experience and residual functional capacity. See Poulos, 474 F.3d at 92; Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).
C. Review of the Administrative Law Judge's Decision
Applying the sequential evaluation process, the ALJ determined that, although Plaintiff could not perform his past work, he could perform other work that exists in substantial numbers in the national economy; therefore, he denied Plaintiff's application for DIB and SSI benefits. R. 594-605. Plaintiff presents a single issue for review: whether the ALJ committed a reversible error of law when she did not apply a borderline age analysis to determine whether Plaintiff was disabled prior to age 50. Pl. Br. at 5-11. The Commissioner contends that the ALJ was not required to apply a borderline age analysis in the circumstances of this case, hence her decision was supported by substantial evidence and should be affirmed. Resp. at 4-8.
To reach a disability determination, the ALJ considers a claimant's age, together with residual functional capacity, education, and work experience. 20 C.F.R. §§ 404.1563(a), 416.963(a). The defined age categories are as follows: younger person (under age 50), person closely approaching advanced age (age 50-55), and person of advanced age (age 55 and older). 20 C.F.R. §§ 404.1563(c)-(e), 416.963(c)-(e). A borderline age situation exists if a claimant is "within a few days to a few months of a higher age category," and would be disabled under the higher age category. 20 C.F.R. §§ 404.1563(b), 416.963(b). In borderline situations, the age categories are not to be applied mechanically. 20 C.F.R. §§ 404.1563(b), 416.963(b).
To determine whether a borderline age situation existed, the ALJ should first have determined whether Plaintiff was within a few days to a few months of a higher age category; if so, using the higher age category, the ALJ should have noted if a determination of disabled rather than not disabled would have resulted. Hearings, Appeals and Litigation Law Manual § II-5-3-2, Application of the Medical-Vocational Guidelines in Borderline Age Situations, 2003 WL 25498826 ("HALLEX II-5-3-2"). "There is no bright-line rule for determining what constitutes a borderline age." Brown v. Astrue, 2012 WL 1555426, at *3 (E.D. Pa. May 2, 2012) (citing Ludvico v. Astrue, 2008 WL 5134938, at *11 (W.D. Pa. Dec. 5, 2008) (citing cases)). In Brown, the court found that borderline age consideration was appropriate for a claimant within 130 days of the relevant birthday, as he fell within a "gray area" defined by Lucas v. Barnhart, 184 Fed. Appx. 204, 208 (3d Cir. 2006) (non-precedential) (106 days is within a few months) and Roberts v. Barnhart, 139 Fed. Appx. 418, 420 (3d Cir. 2005) (non-precedential) (no support for extending borderline age consideration to claimant's five to six months from relevant birthday). Here, Plaintiff, 129 days from his 50th birthday at the time of the ALJ's decision, should have been accorded borderline age consideration. See Vaughn v. Astrue, 2011 WL 1628031, at *6 (W.D. Pa. Apr. 28, 2011) (four months and eighteen days sufficiently close); Morealli v. Astrue, 2010 WL 645296, at *9 (W.D. Pa. Feb. 23, 2010) (five and a half months sufficiently close); Istik v. Astrue, 2009 WL 382503, at *4 (W.D. Pa. Feb. 13, 2009) (seven months sufficiently close).
See also Program Operations Manual Systems (POMS) DI 25015.006 (effective May 27, 2016). Plaintiff cites several times to POMS DI 25015.006, notwithstanding that it became effective nearly two years after the ALJ's decision. Addressing borderline age situations, POMS DI 25015.006B states, "usually, we consider a few days to a few months to mean a period not to exceed 6 months."
The ALJ found that Plaintiff had the residual functional capacity to perform a limited range of sedentary work. R. 599. Additionally, she found that Plaintiff had a limited education and no transferable skills. R. 604. At age 50, the Medical Vocational Guidelines, Grid Rule 201.10, dictates a finding of disabled for a claimant limited to sedentary work, with a limited education, whose past work is skilled or semi-skilled, and who has no transferrable skills. 20 C.F.R. Pt. 404, subpart P, App. 2, 201.10. Thus, had the ALJ placed Plaintiff in the "closely approaching advanced age" category, a finding of disabled could have resulted in this case.
The Commissioner responds that 20 C.F.R. §§ 404.1563(b) and 416.963(b) do not obligate the ALJ to address a claimant's borderline age situation in a decision or explain how a particular age-category determination was reached. Resp. at 5. Additionally, the Commissioner argues that HALLEX II-5-3-2 instructs the ALJ to use chronological age when a claimant has failed to provide evidence of additional vocational adversities to justify the use of a higher age category. Resp. at 6. These arguments are unavailing. See Brown, 2012 WL 1555426, at *3-4. The first argument contravenes our Court of Appeals which has held that ALJs are required to explain their age category determinations in borderline age situations. Kane v. Heckler, 776 F.2d 1130, 1132-34 (3d Cir. 1985) (remanding where ALJ noted claimant's age, but did not discuss borderline age situation); Brown, 2012 WL 1555426, at *4 (citations omitted) ("When a record does not contain factual findings relevant to the § 404.1563(b) inquiry into whether a claimant presents a borderline age situation, the determination of non-disability is unsupported by substantial evidence and the case must be remanded. The ALJ's silence makes it 'impossible to discern whether the ALJ properly applied section 404.1563(b)."); Correa v. Astrue, 2009 WL 585500, at *5 (E.D. Pa. Mar. 4, 2009) (same). Secondly, although HALLEX II-5-3-2, as an internal agency manual, is persuasive, it is not entitled to deference. Brown, 2012 WL 1555426, at *4 (citing Christensen v. Harris Cty,, 529 U.S. 576, 587 (2000)).
See POMS DI 25015E.1.b, stating "Education below the high school level may be vocationally disadvantageous." Here, as noted, Plaintiff completed the 11th grade in Puerto Rico, and the ALJ found that he possessed a limited education. R. 399, 603. --------
Finally, the vocational expert's testimony that Plaintiff could perform certain jobs does not provide substantial evidence to support the ALJ's decision, because "the issue of ability to adjust as an adjunct of age is legally and analytically distinct from the inquiry into whether one can perform a significant number of [ ] jobs in the national economy." Brown, 2012 WL 1555426, at *4 (quoting Lucas, 184 Fed. App'x. at 207-08).
Because the ALJ failed to make factual findings regarding Plaintiff's borderline age situation, her decision is not supported by substantial evidence. Accordingly, this court recommends that Plaintiff's request for review be granted, and the matter remanded for further proceedings consistent with this court's recommendation.
V. CONCLUSION
A thorough review of the record indicates that the Commissioner's final decision was flawed by reversible legal error. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 27th day of February, 2017, I respectfully recommend that:
1. The Report and Recommendation be APPROVED and ADOPTED.
2. The case be REMANDED to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), to permit the ALJ to make factual findings regarding Plaintiff's borderline age situation.
3. Judgment be ENTERED in favor of Plaintiff and against the Commissioner of Social Security. It be so ORDERED.
Carol Sandra Moore Wells
CAROL SANDRA MOORE WELLS
United States Magistrate Judge