Opinion
20-CV-9007 (PGG) (JW)
09-26-2022
ANNMARIE VITARELLI, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security Defendant.
THE HONORABLE PAUL G. GARDEPHE, United States District Judge.
REPORT AND RECOMMENDATION
JENNIFER E. WILLIS, United States Magistrate Judge.
INTRODUCTION
Annmarie Vitarelli (“Vitarelli”) commenced this action against the Commissioner of Social Security (the “Commissioner”), seeking review of an administrative law judge's (“ALJ”) February 3, 2020 decision, finding her ineligible for disability insurance benefits, pursuant to Title II of the Social Security Act (the “SSA”), 42 U.S.C. §§ 401-43. Before the Court are the parties' motions for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
ALJ'S DECISION
On September 5, 2018, Vitarelli protectively filed a Title II application for a period of disability and disability insurance benefits, alleging disability beginning August 10, 2018. (Tr.11). The claim was denied and Vitarelli appeared for and testified at a hearing before the ALJ, Angela Banks, at which an impartial vocational expert also testified. (Id.). The ALJ found that Vitarelli: (1) meets the insured status requirements of the SSA through December 31, 2022; (2) has not engaged in substantial gainful activity since August 10, 2018, the alleged onset date; (3) “has the following severe impairments: degenerative disc disease, depressive disorder, anxiety disorder, and posttraumatic stress disorder”; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) has the residual functional capacity to perform sedentary work, except that she “can occasionally balance, stoop, crouch, kneel, crawl and climb ramps and stairs; and never climb ladders, ropes or scaffolds,” “remains able to perform the mental demands of work that requires her to understand, remember, and carry out instructions consistent with occupations that can be learned in up to 30 days,” “requires a setting that is goal-oriented versus requiring that she maintain a specified pace consistently throughout a workday,” “can tolerate occasional interaction with the public, and remains able to interact appropriately with supervisors and co-workers”; (6) is unable to perform any past relevant work; (7) was a younger individual age 45-49, on the alleged disability onset date; and (8) has at least a high school education and is able to communicate in English. (Tr.13-21).
In determining the severity of Vitarelli's impairments, the ALJ noted that, while she was also diagnosed with migraines and complex regional pain syndrome (“CRPS”), “the record does not indicate that either of these impairments cause more than minimal limitations on her ability to perform basic work activities, and they are thus nonsevere.” (Tr. 13). The ALJ added that “[s]uch a determination is immaterial in this case, however, as the undersigned has analyzed the claimant's complete physical functioning in the residual functional capacity analysis.” (Tr. 14).
In determining the severity of Vitarelli's mental impairments, the ALJ considered paragraph B criteria, finding the following limitations in four broad areas of functioning: (a) moderate limitations in understanding, remembering, or applying information; (b) mild limitation in interacting with others; (c) moderate limitation in concentrating, persisting, or maintaining pace; and (d) mild limitation in adapting or managing oneself. (Tr. 14-15). The ALJ found that Vitarelli's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but her statements concerning the intensity, persistence and limiting effects of the symptoms are not entirely consistent with the medical evidence and other evidence in the record. (Tr. 16).
Concerning opinion evidence, the ALJ considered the prior administrative medical findings of Disability Determination Services consultants A. Vinluan, MD, (“Dr. Vinluan”) and A. Saeed, MD, (“Dr. Saeed”) who found that Vitarelli can perform work at the less than light exertional level. The ALJ found them unpersuasive because they are “overly permissive and inconsistent with the longitudinal record, including that while imaging showed degenerative disc disease” and Vitarelli “exhibited radiculopathy, and antalgic gait with a cane, spinal tenderness, muscle spasms, and limited range of motion,” on other occasions it was noted that her upper and lower extremity strength were 5/5, her grip strength was 5/5, her gait, coordination, posture, and muscle tone were normal. In addition, her consultative examiner did not think that her cane was medically necessary, she was observed needing no help changing or getting on and off an examination table, her lungs were clear to auscultation, her heart sounds were normal, she was well, developed, well nourished, and her brain imaging showed no evidence of abnormal intraparenchymal signal intensity or mass lesions. (Tr. 18).
The ALJ also considered the prior administrative medical findings of Disability Determination Services consultant K. Lieber-Diaz, PsyD, (“Dr. Lieber-Diaz”), who found that Vitarelli would be capable of unskilled work on a sustained basis, finding it unpersuasive. (Tr. 19). The ALJ explained that failing to account for social limitations or more specific-pace limitations is overly permissive and inconsistent with longitudinal record. (Tr. 19). Although Vitarelli exhibited impaired recent and remote memory skills, poor eye contact, restless motor behavior, slowed speech and thinking and depressed and anxious mood, on other occasions it was noted that her cognitive functioning was average, her short and long-term memory were intact, her thought process was coherent and goal-directed, her thinking was logical, her thought content appropriate, her attention and concentration were intact, she was able to do simple calculations and to complete serial 7s, her speech was coherent, her demeanor cooperative and friendly, her behavior, judgment, and insight were normal, her eye contact was good, her speech was normal in rate, volume, and articulation, she was well groomed and her mood was normal at times. (Id.).
Next, the ALJ considered the opinion of internal medicine consultative examiner Daniel Schwartz, MD, (“Dr. Schwartz”) that Vitarelli has mild to moderate limitations with prolonged walking, standing, sitting, bending, pushing and pulling, as well as with heavy lifting and carrying, and she may experience schedules interruption due to migraines, finding it “somewhat persuasive.” (Id.). The ALJ noted that, while Dr. Schwartz's opinion is “somewhat vague” and the record does not contain evidence indicating that migraines cause more than minimal functional limitations, it appears otherwise generally consistent with the longitudinal record. (Id.).
The ALJ found unpersuasive the opinion of pain management physician Randa Jaafar, MD, (“Dr. Jaafar”) that Vitarelli can sit for one hour or less, can stand and/or walk for one hour or less, can only lift or carry up to 10 pounds occasionally, can never perform postural activities, can only occasionally reach, and has environmental limitations. (Id.). The ALJ found that, although Dr. Jaafar is a treatment provider, her opinion is overly restrictive, unsupported by and inconsistent with the longitudinal record. (Id.).
The ALJ also found unpersuasive the opinion of psychological consultative examiner Konstantinos Tsoubris, PhD, (“Dr. Tsoubris”), that Vitarelli has: (i) no limitations in using reason and judgment to make work-related decisions, sustaining concentration and performing a task at a consistent pace, maintaining personal hygiene and appropriate attire and being aware of normal hazards and taking appropriate precautions; (ii) mild limitation in understanding, remembering, and applying simple directions and instructions; (iii) moderate limitation understanding, remembering, and applying complex directions and instructions; and (iv) marked limitations in interacting adequately with supervisors, co-workers, and the public, sustaining an ordinary routine and regular attendance at work, and regulating emotions, controlling behavior, and maintaining well-being. (Tr. 19-20). The ALJ explained that, while the mild and moderate limitations found by Dr. Tsoubris are generally consistent with the longitudinal record, he failed to support adequately the marked limitations, which are overly restrictive and inconsistent with the longitudinal record. (Tr. 20).
Lastly, the ALJ found unpersuasive the opinion of Illana Slaff, MD, (“Dr. Slaff”), who found that Vitarelli has marked limitations in responding appropriately to supervision or coworkers, responding to work pressures, performing complex tasks and satisfying normal quality, production, and attendance standards. (Id.). The ALJ determined that, although Dr. Slaff is a treatment psychiatrist, the intensity of the marked limitations lacks support and is inconsistent with the longitudinal record. (Id.).
The ALJ found that transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Vitarelli is not disabled regardless of her transferable job skills. (Tr. 21). The ALJ noted that, if the claimant had the residual functional capacity to perform the full range of sedentary work, a finding of “not disabled” would be directed by Medical-Vocational Rule 201.21. (Id.). However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. (Id.). To determine the extent to which these limitations erode the unskilled sedentary occupational base, the ALJ asked the vocational expert whether jobs exist in the national economy for an individual with Vitarelli's age, education, work experience, and residual functional capacity. (Id.). The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative occupations such as an addresser, document preparer, microfilming, and cutter and paster, press clippings. (Id.). Considering Vitarelli's age, education, work experience, and residual functional capacity, the ALJ found that jobs exist in significant numbers in the national economy that Vitarelli can perform, such as an addresser, document preparer, microfilming, and cutter and paster, press clippings. (Id.). The ALJ concluded that Vitarelli has not been under disability from August 10, 2018, through the date of the decision. (Tr. 22).
PLAINTIFF'S CONTENTIONS
Vitarelli argues that the ALJ failed properly to: (1) evaluate the opinion evidence; (2) evaluate her CRPS; and (3) consider her borderline age situation. Vitarelli asserts that the ALJ's assessment of the opinions in the record, namely, “those of the state agency reviewers (Tr. 40-41, 51-52), the internal medicine consultative examiner (Tr. 902), the psychological consultative examiner (Tr. 907-908), Dr. Slaff's treating opinion (Tr. 931-935), and Dr. Jaafar's treating opinion (Tr. 953-958),” was not supported by substantial evidence. The ALJ discounted each opinion in whole or in part and favored most heavily Dr. Schwartz's consulting opinion, which employed the undefined and vague terms of “mild to moderate” and “prolonged.” Moreover, Dr. Schwartz opined that Vitarelli has mild to moderate limitations in prolonged sitting and may experience schedule interruptions due to migraines, but the ALJ failed to accommodate that part of Dr. Schwartz's opinion, which was an error.
According to Vitarelli, the ALJ substituted improperly her opinion for that of Dr. Jaafar, by finding that Dr. Jaafar's opinion was overly restrictive in light of the findings in the record, despite acknowledging that Dr. Jaafar provided support for her opinion.
Specifically Dr. Jaafar cited clinical findings of tenderness with muscle spasms at the lumbar midline area and limited range of motion with all planes of activity (Tr. 953). Dr. Jaafar also attached results of objective studies to her report including a March 2018 thoracic spine MRI showing a T7-T8 disc protrusion contacting the spinal cord, a November 2016 lumbar spine MRI showing disc dessication [sic] and disc space narrowing at ¶ 5-S1, a December 2014 brain MRI that was negative, and a December 2014 cervical spine MRI multilevel cervical discogenic spondylosis with cord abutment at two levels (Tr. 953, 959-973). The ALJ herself referenced the same evidence in her string citation (see Tr. 18 citing Tr. 953-973, 980, 986, 1096-1104). However, the ALJ failed to articulate any reason why the evidence held out by Dr. Jaafar in support of her opinion was insufficient to support her assessments (Tr. 19). It was a legal error for the ALJ to neglect the supportive explanations that accompanied Dr. Jaafar's opinion and thus fail to consider the required “supportability” factor.
Vitarelli argues that the evidence cited by the ALJ supports rather than contradicts Dr. Jaafar's opinion that Vitarelli has significant physical limitations due to myalgia and spinal impairments.
For example, the ALJ cited Tr. 335, a December 2014 examination during which Ms. Vitarelli exhibited reduced cervical range of motion, reduced lumbar range of motion, reduced strength rated 4/5, positive straight leg raise, and abnormal sensation (Tr. 18). The ALJ cited Tr. 990, a September 2017 physical therapy examination showing “severe” spasm at the lower part of the paraspinal muscles in the thoracic area, “severe” tenderness at both the sacroiliac joints, reduced lumbar range of motion limited to 25% in all movements due to tightness and severe pain, except flexion limited to 50% due to “severe” shooting pain (Tr. 18). The ALJ cited Tr. 1058, a September 2018 physical therapy evaluation documenting reduced lumbar range of motion and reduced abdominal strength rated 3/5 (Tr. 18).
The ALJ also cited as contradictory evidence pertaining to the February 2018 visit when Dr. Jaafar placed Vitarelli under a spinal cord simulator trial (Tr. 613, 616, 1023), as well as a post-operative examination after Vitarelli had the permanent spinal cord stimulator implant (Tr. 800). Since Vitarelli required spinal cord stimulator as a measure to treat her back pain, that evidence does not conflict with Dr. Jaafar's opinion about disabling spine pain. The ALJ failed to cite substantial evidence in support of her decision to discount Dr. Jaafar's opinion. The ALJ also cited to irrelevant evidence when discounting Dr. Jaafar's opinion, including a December 2017 emergency visit for leg pain and the psychological consultative examination during which no physical examination occurred.
In formulating the non-exertional portion of the residual functional capacity, the ALJ erred in discounting every medical opinion in the record, finding that the marked limitations found by Dr. Tsoubris were overly restrictive and inconsistent with the longitudinal record and using the same rationale to discount Dr. Slaff's opinion. Similarly, as with the ALJ's evaluation of opinions in connection with exertional limitations, the ALJ cited evidence that supports rather than conflicts with Dr. Tsoubris's and Dr. Slaff's opinions.
For example, the ALJ cited Tr. 235-254, Plaintiff's Function Report in which Ms. Vitarelli reported she spent most of her time in bed (Tr. 237, 239, 241). Ms. Vitarelli endorsed problems paying attention (Tr. 243). She reported that stress and changes in schedule affected her headaches and pain level (Tr. 244). The ALJ cited Ms. Vitarelli's brief stint of treatment with Dr. [Kalpana] Doraiswamy[, PsyD,] (Tr. 19 citing Tr. 910-915). These records contrain [sic] medical observations that Ms. Vitarelli appeared sad, “morose in appearance,” looked “unhappy,” and was “guarded” (Tr. 913). Dr. Doraiswamy observed there were “signs of severe depression” noting that Ms. Vitarelli had a sad demeanor, tearfulness, a body posture and attitude conveying an underlying depressed mood, slowed speech and thinking. Id. The ALJ cited from Dr. Slaff's records documenting Ms. Vitarelli had a depressed and anxious mood constricted affect (Tr. 19 citing Tr. 919, 925, 928, 930). These records also documented that Ms. Vitarelli had continued mental symptoms and required increased doses of her medications (see Tr. 919, increasing Zoloft and Ambien; Tr. 925, still having insomnia, still very hypervigilant; Tr. 928, still having nightmares, flashbacks sometimes, depressed, anhedonia, difficulty getting out of bed).
The ALJ also cited evidence that is irrelevant to Vitarelli's mental functioning, including “a November 2017 emergency department visit for leg pain (Tr. 19 citing Tr. 584-585); the February 2018 spinal cord stimulator trial (Tr. 19 citing Tr. 616); the postoperative examination following the spinal cord stimulator implant (Tr. 19 citing Tr. 800); and visits with Dr. Jaafar (Tr. 19 citing Tr. 980, 986).” Moreover, the ALJ cited “Dr. Tsoubris' own examination and Dr. Slaff's own opinion (Tr. 19 citing Tr. 904-909, 931-935),” both of which contain supportive explanations for their assessments.
Vitarelli argues that the ALJ erred in finding that her CRPS was not severe, referring to her analysis of Vitarelli's physical functioning in the residual functional capacity assessment. However, in that assessment the ALJ repeatedly stated that some findings in the record were unremarkable, while others were not, and therefore Vitarelli's subjective statements and Dr. Jaafar's treating opinion were unpersuasive. The ALJ neglected Dr, Jaafar's clinical findings reflecting Vitarelli's CRPS, namely, “left foot allodynia along with skin and nail changes (Tr. 611, 616, 664, 666, 671, 677, 669, 686, 689, 693, 705).” The AJL analyzed negative evidence, despite the fact that evidence in CRPS cases may be contradictory and transient. The ALJ's analysis of the severity of CRPS, Dr. Jaafar's opinion concerning functional limitations resulting from CRPS and Vitarelli's testimony does not stand up to scrutiny, as she failed to grapple with the unique presentation of CRPS.
Finally, Vitarelli argues that the ALJ erred by applying Medical Vocational Guidelines (“GRID”) rule 201.21, applicable to a person who is younger individual age 45-49 and is limited to no more than sedentary work, without mentioning Vitarelli's borderline age situation. Had the ALJ considered the borderline age situation, the appropriate GRID rule would be 201.14, which pertains to high-school educated individuals who are closely approaching advanced age with past work that is skilled or semi-skilled, which skills are not transferable and who are limited to sedentary work, resulting in a finding of disability. This was a harmful error requiring remand. Vitarelli seeks reversal of the ALJ's decision remand solely for calculation of benefits or, alternatively, remand for further proceedings.
DEFENDANT'S CONTENTIONS
The Commissioner argues that substantial evidence supports the ALJ's findings at steps two and five of the sequential analysis, as well as the residual functional capacity finding. Contrary to Vitarelli's assertion, Dr. Schwartz's opinion that she had mild-to-moderate limitations for prolonged sitting was not inconsistent with a residual functional capacity for a range of sedentary work. To the extent that Vitarelli argues that a “moderate” limitation in “prolonged” sitting is more restrictive than a limitation to sedentary work, she is incorrect because sedentary work only requires an individual to “remain in a seated position for approximately 6 hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon break at approximately 2-hour intervals.”
The ALJ properly noted the absence of record evidence showing more than minimal functional limitations due to Plaintiff's migraines. Tr. 19, 902. Dr. Schwartz's opinion in this regard was inconsistent with record evidence showing that despite Plaintiff's subjective complaints of weekly migraines, Tr. 43, she had a normal mood, affect, behavior, judgment, and coordination when examined for physical ailments, was neurologically and cognitively intact, and had a normal brain MRI. Tr. 585, 693, 705, 715, 901, 913, 964, 983, 986, 1062, 1067, 1071. Dr. Schwartz's anticipation of possible schedule interruptions was also inconsistent with Plaintiff's ability to care for her daughter, cook, clean, care for her personal needs, shop, manage her finances, and travel independently via public transportation. Tr. 899, 905, 907.
The ALJS also reasonably found unpersuasive Dr. Jaafar's opinion that Vitarelli “could sit and stand/walk for less than one hour, lift/carry less than ten pounds occasionally, never perform postural activities, and occasionally reach on the grounds that it was inconsistent with the evidence of record. Tr. 19, 955-56.” The Commissioner maintains that the ALJ did not rely on her lay opinion to interpret medical evidence, but she relied “on record findings showing that Plaintiff had a negative SLR bilaterally, normal gait, and full strength, sensation, and reflexes throughout the extremities. Tr. 19, 664, 693, 705, 715, 901, 976, 980, 983, 986, 1062, 1067, 1071.” That the record contains positive clinical findings, including limited lumbar range of motion, does not undermine the ALJ's decision where there is also competent evidence supporting her finding that Vitarelli could do a range of sedentary work.
The ALJ found reasonably that Dr. Tsoubris's finding of marked limitations in interacting with others, regulating emotions, and sustaining ordinary routine and regular attendance, was unpersuasive on the ground of its inconsistency with the record. Similarly, the ALJ found reasonably that Dr. Slaff's finding of marked limitations in Vitarelli's ability to interact with others, respond to customary work pressures, and perform complex tasks was unpersuasive due to its inconsistency with the record.
Mental status examination findings showed that Plaintiff was cooperative, alert, and fully oriented. Tr. 693, 705, 715, 906, 913, 983. She had intact memory, logical thoughts, and fair insight/judgment. Tr. 907, 913. Plaintiff reported that she could finish what she started, follow spoken and written instructions, and had no problems getting along with others. Tr. 244-45. While Dr. Slaff frequently but succinctly noted a depressed and/or anxious mood with constricted affect at Plaintiff's visits, Tr. 919-30, her one comprehensive mental status examination in May 2019 noted no psychomotor agitation; normal speech and rhythm; good eye contact; cooperative presentation; logical and goal-directed thoughts; depressed and anxious mood; constricted affect; and fair insight and judgment, and the ability to spell earth backwards, do serial sevens to five digits, and recall one of three objects after five minutes, Tr. 930.
The Commissioner argues that the ALJ reasonably found that Vitarelli's CRPS did not cause more than minimal limitations on her ability to perform basic work activities and indicated expressly that she considered it in determining the residual functional capacity. Vitarelli failed to show that her left foot allodynia or CRPS imposed limitations beyond those the ALJ included in the residual functional capacity, and remand would serve no purpose because the outcome would not change. Even if Vitarelli's CRPS should have been found severe at step two, any error in the ALJ's analysis at step two was harmless and was cured when the ALJ found other severe impairments and proceeded beyond step two. According to the Commissioner, nothing in the Social Security Rulings indicates that the ALJ could not consider the objective evidence in determining what impact any alleged impairments have on Vitarelli's abilities.
Examination findings showed that despite Plaintiff's complaints of pain, she had normal skin, negative SLR bilaterally, normal gait, and full strength, sensation, and reflexes throughout the extremities. Tr. 664, 693, 705, 715, 901, 976, 980, 983, 986, 1062, 1067, 1071. Although Dr. Jaafar noted left foot allodynia and skin and nail changes, the allodynia was limited to the left foot. In any event, Dr. Jaafar provided no additional objective findings or suggestion of any limitations stemming from this condition, either from the foot or the skin, hair or nail changes.
The ALJ also relied on part of Dr. Schwartz's examination findings that Vitarelli appeared to be in only mild distress and had normal skin, no redness, heat, swelling, or effusion, normal strength and sensation and the ability to walk without a cane, citing Tr. 900, 901, 902, and Dr. Schwartz did not note any abnormal movements. The clinical findings by Dr. Jaafar and Dr. Schwartz were not consistent in this regard, and substantial evidence supports the ALJ's finding that Vitarelli did not have allodynia, CRPS-related conditions or other conditions that would preclude the residual functional capacity. The ALJ did not find Vitarelli's statements concerning the intensity, persistence and limiting effects of her symptoms entirely consistent with the record, and Dr. Jaafar did not identify any CRPS-specific functional limitations, which was consistent with Dr. Schwartz's findings.
The Commissioner argues that substantial evidence supports the ALJ's finding at step five. The vocational expert testified that a hypothetical person with Vitarelli's profile and residual functional capacity could perform the unskilled sedentary jobs which existed in significant numbers in the national economy. As substantial evidence supports the findings upon which the hypothetical is based, the ALJ properly relied on the vocational expert at step five. Vitarelli was 49 years, 7 months, and 25 days old on the date of the ALJ's decision, more than a few months of reaching an older age category, which courts in this circuit do not consider borderline age. The Commissioner seeks an order affirming the ALJ's decision.
REPLY
The Commissioner's argument that Dr. Schwartz's consulting opinion, which by the ALJ's own admission was “vague,” adequately supports the residual functional capacity for sedentary work is meritless because, in this circuit, “an opinion is ‘so vague as to render it useless' when the doctor used terms such as ‘moderate' and ‘mild,' without additional information.” The ALJ set forth her lay opinion against Dr. Jaafar's when evaluating evidence, including the same evidence on which Dr. Jaafar relied in support of her opinion, but arriving at her own different conclusion, which is an error of law. The Commissioner failed to respond meaningfully to Vitarelli's argument that the ALJ cited evidence that supports rather than conflicts with Dr. Jaafar's opinion. The Commissioner's conclusory assertion that the ALJ's mental residual functional capacity is supported by substantial evidence is insufficient to rebut Vitarelli's argument that the ALJ's mental residual functional capacity is an impermissible lay evaluation of the raw medical evidence, since the ALJ rejected every mental medical source opinion. The Commissioner did not respond to Vitarelli's arguments concerning the ALJ's evaluation of Dr. Tsoubris and Dr. Slaff.
Vitarelli contends that the ALJ did not properly evaluate her CRPS because Dr. Jaafar's opinion concerned her severe and constant pain and she testified about pain and limitations in the left side of her body, which is the side effect of CRPS. With respect to consideration of Vitarelli's age situation, she maintains that the Commissioner's definition of a few months is rigid, and courts have recognized the existence of a borderline situation where the claimant is within six months form the next category, which is the case here. Moreover, it is the Commissioner's rather than the ALJ's opinion that Vitarelli was outside the borderline age consideration, and this post hoc rationalization must be rejected. The ALJ failed to explain why she did not consider a borderline age situation, which was an error.
LEGAL STANDARD
“After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g).
A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). “Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.” Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted).
To qualify for disability benefits, an individual must be unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The Social Security Administration's regulations establish a five-step sequential evaluation process for determining a disability claim. See 20 C.F.R. § 404.1520(a)(4).
If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§ 404.1520(b), 416.920(b). At step two,
the [Social Security Administration] will find nondisability unless the claimant shows that he has a “severe impairment,” defined as “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the [Social Security Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the [Social Security Administration] to consider so-called “vocational factors” (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S.Ct. 376, 379-80 (2003).
“The applicant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
APPLICATION OF LEGAL STANDARD
Evaluating Opinion Evidence
Since Vitarelli applied for benefits on September 5, 2018, her claim is subject to the Social Security Administration's regulations governing evaluation of opinion evidence for claims filed after March 27, 2017, which provide:
(a) How we consider medical opinions and prior administrative medical findings. We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical
source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are support ability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.
(b) How we articulate our consideration of medical opinions and prior administrative medical findings. We will articulate in our determination or decision how persuasive we find all of the medical opinions and all of the prior administrative medical findings in your case record. Our articulation requirements are as follows:
(1) Source-level articulation. Because many claims have voluminous case records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings in your case record. Instead, when a medical source provides multiple medical opinion(s) or prior administrative medical finding(s), we will articulate how we considered the medical opinions or prior administrative medical findings from that medical source together in a single analysis using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. We are not required to articulate how we considered each medical opinion or prior administrative medical finding from one medical source individually.
(2) Most important factors. The factors of supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section) are the most important factors we consider when we determine how persuasive we find a medical source's medical opinions or prior administrative medical findings to be. Therefore, we will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision. We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (c)(5) of this section, as appropriate, when we articulate how we consider medical opinions and prior administrative medical findings in your case record.
(3) Equally persuasive medical opinions or prior administrative medical findings about the same issue. When we find that two or more medical opinions or prior administrative medical findings about the same issue are both equally well-supported (paragraph (c)(1) of this section) and consistent with the record (paragraph (c)(2) of this section) but are not exactly the same, we will articulate how we considered the other most persuasive factors in paragraphs (c)(3) through (c)(5) of this section for
those medical opinions or prior administrative medical findings in your determination or decision.
(c) Factors. We will consider the following factors when we consider the medical opinion(s) and prior administrative medical finding(s) in your case:
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.
(3) Relationship with the claimant. This factor combines consideration of the issues in paragraphs (c)(3)(i) through (v) of this section.
(i) Length of the treatment relationship. The length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with the medical source may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories may help demonstrate the level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative medical finding of a medical source who has received advanced education and training to become a specialist may be more persuasive about medical issues related to his or her area of specialty than the medical opinion or prior administrative medical finding of a medical source who is not a specialist in the relevant area of specialty.
(5) Other factors. We will consider other factors that tend to support or contradict a medical opinion or prior administrative medical finding. This includes, but is not limited to, evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements. When
we consider a medical source's familiarity with the other evidence in a claim, we will also consider whether new evidence we receive after the medical source made his or her medical opinion or prior administrative medical finding makes the medical opinion or prior administrative medical finding more or less persuasive.
(d) Evidence from nonmedical sources. We are not required to articulate how we considered evidence from nonmedical sources using the requirements in paragraphs (a)-(c) in this section.20 C.F.R. § 404.1520c.
The ALJ found unpersuasive the opinions of state agency consultants Dr. Vinluan and Dr. Lieber-Diaz because, although the consultants “provided adequate analysis in support of their findings,” their findings were overly permissive and inconsistent with the longitudinal record, which shows some evidence that supports and other evidence that contradicts Vitarelli's claims. (Tr. 18-19). The ALJ repeated the same explanation for finding unpersuasive Dr' Jaafar's, Dr. Tsoubris's, and Dr. Slaffs opinions, namely:
While Dr. Jaafar is a treatment provider who included explanations in support of her opinions, the intensity of her opinion is overly restrictive and is unsupported by and inconsistent with the longitudinal record, as described in the analysis of the Disability Determination Services consultant findings, above (e.g. Exhibits 3F/15, 5F/6/7, 6F/3/6, 7F/2, 10F, 11F, 17F, 18F/7/13, 19F/2/35/70/77/108- 116).
(Tr. 19).
While Dr. Tsoubris examined the claimant and provided a useful report in support of his opinion, and the above noted mild and moderate limitations are generally consistent with the longitudinal record, he failed to adequately support the above noted marked limitations. Such marked limitations are also overly restrictive and inconsistent with the longitudinal record, as described in the analysis of the Disability Determination Services consultant findings, above (e.g. Exhibits 3E, 5F/6/7, 6F/6, 7F/2, 11F, 12F, 13F/4/10/13/15, 14F, 18F/7/13).
(Tr. 20).
While Dr. Slaff is a treatment provider who included explanations in support of her opinions, the intensity of the above noted marked limitations lacks support and is inconsistent with the longitudinal record, as described in the analysis of the Disability Determination Services consultant findings, above (e.g. Exhibits 3E, 5F/6/7, 6F/6, 7F/2, 11F, 12F, 13F/4/10/13/15, 14F, 18F/7/13).(Id.).
The ALJ found that Dr. Jaafar supported her opinion, citing to the same evidence Dr. Jaafar cited in her opinion, including clinical findings of tenderness with muscle spasms at the lumbar midline area and limited range of motion with all planes of activity (Tr. 953), the results of objective studies showing, in March 2018, a T7-T8 disc protrusion contacting the spinal cord, in November 2018, disc desiccation and disc space narrowing at ¶ 5-S1, a December 2014 multilevel cervical discogenic spondylosis with cord abutment at two levels (Tr. 935, 959-973), a December 2014 examination finding of reduced cervical range of motion, reduced lumbar range of motion, reduced strength rated 4/5, positive straight leg raise, and abnormal sensations (Tr. 335), a September 2017 physical therapy examination showing severe spasm at the lower part of the paraspinal muscles in the thoracic area, severe tenderness at both sacroiliac joints, and reduced lumbar range of motion limited to 25% in all movements due to tightness and severe pain, except flexion limited to 50% due to severe shooting pain (Tr. 990). The ALJ's failure to explain how the same evidence that supported Dr. Jaafar's opinion was insufficient to support the ALJ's residual functional capacity assessment, was an error that precludes any meaningful review of the supportability and consistency factors.
Similarly, the evidence the ALJ cited in support of her finding that Dr. Tsoubris's and Dr. Slaffs opinions were unpersuasive (Tr. 235-254, 910-915), including Dr. Slaffs documenting that Vitarelli had a depressed and anxious mood constricted affect (Tr. 919, 925, 928, 930), supports rather than contradict their opinions. The ALJ's failure to explain how the same evidence that supported the opinions of Dr. Tsoubris and Dr. Slaff was insufficient to support the ALJ's residual functional capacity assessment, was an error that precludes any meaningful review of the supportability and consistency factors. Since the ALJ made findings concerning mental residual functional capacity without any mental health source opinion evidence, those findings are made improperly based on her lay opinion concerning mental limitations, Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“In the absence of supporting expert medical opinion, the ALJ should not have engaged in his own evaluations of the medical findings.”) (citation omitted), constituting an error of law and they are not supported by substantial evidence.
Having found all opinions, apart from Dr. Schwartz's, unpersuasive based on their lack of support and inconsistency with the longitudinal record, the ALJ relied on Dr. Schwartz's opinion in support of her residual capacity determination. However, the ALJ found Dr. Schwartz's opinion “somewhat persuasive” and “somewhat vague” while at the same time generally consistent with the longitudinal record as described in the ALJ's analysis Dr. Vinluan's and Dr. Lieber-Diaz's findings. (Tr. 19). The ALJ did not identify any part(s) of Dr. Schwartz's opinion that she found “somewhat vague” or explain the basis for finding such part(s) vague, precluding any meaningful review. The ALJ failed to explain how Dr' Schwartz's vague opinion is consistent with the record, given that vagueness indicates lack of certainty. See Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013) (“Dr. Naughten's opinion is remarkably vague. What Dr. Naughten means by ‘mild degree' and ‘intermittent' is left to the ALJ's sheer speculation.”).
The ALJ's reliance on Dr. Schwartz's “somewhat vague” opinion, without any explanation or reconciliation of its simultaneous vagueness and consistency with the record, was an error that precludes any meaningful review of the consistency factor. Consequently, the ALJ's residual functional capacity determination was not supported by substantial evidence.
Evaluating Severity of CRPS
At step two of the sequential analysis, the ALJ must consider the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(c). “[T]he standard for a finding of severity under Step Two of the sequential analysis is de minimis and is intended only to screen out the very weakest cases.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014).
In evaluating cases involving reflex sympathetic dystrophy syndrome (“RSDS”) also known as CRPS, the Social Security Ruling 03-2p provides:
RSDS/CRPS is a chronic pain syndrome most often resulting from trauma to a single extremity. It can also result from diseases, surgery, or injury affecting other parts of the body. Even a minor injury can trigger RSDS/CRPS. The most common acute clinical manifestations include complaints of intense pain and findings indicative of autonomic dysfunction at the site of the precipitating trauma. Later, spontaneously occurring pain may be associated with abnormalities in the affected region involving the skin, subcutaneous tissue, and bone. It is
characteristic of this syndrome that the degree of pain reported is out of proportion to the severity of the injury sustained by the individual. When left untreated, the signs and symptoms of the disorder may worsen over time.
Titles II & Xvi: Evaluating Cases Involving Reflex Sympathetic Dystrophy Syndrome/complex Reg'l Pain Syndrome, SSR 03-2P at *1 (S.S.A. Oct. 20, 2003) (“SSR 03-2P”).
When longitudinal treatment records document persistent limiting pain in an area where one or more of these abnormal signs has been documented at some point in time since the date of the precipitating injury, disability adjudicators can reliably determine that RSDS/CRPS is present and constitutes a medically determinable impairment. It may be noted in the treatment records that these signs are not present continuously, or the signs may be present at one examination and not appear at another. Transient findings are characteristic of RSDS/CRPS, and do not affect a finding that a medically determinable impairment is present. . . . It should be noted that conflicting evidence in the medical record is not unusual in cases of RSDS due to the transitory nature of its objective findings and the complicated diagnostic process involved. Clarification of any such conflicts in the medical evidence should be sought first from the individual's treating or other medical sources.Id. at *4-5.
“Careful consideration must be given to the effects of pain and its treatment on an individual's capacity to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” Id. at *7.
The ALJ did not provide any explanation for her finding at step two that the record does not indicate that CRPS causes more than minimal limitations on Vitarelli's ability to perform basic work activities, apart from citing to some examples of the record evidence, namely: (1) a consultation notes from December 23, 2014, by Dr. Robert Marini, MD (”Dr. Marini”), Tr. 335 (“3F/15”), indicating chief complaints of lower back pain, bilateral leg pain and neck pain, and that Vitarelli “has been having migraine headaches since the car accident”; (2) Dr. Jaafar's progress note signed on December 28, 2018, from Vitarelli's visit for spinal cord stimulator removal in which Dr. Jaafar assessed CRPS “of lower limb, bilateral,” Tr. 335 (“6F/2”); (3) Dr. Schwartz's opinion, Tr. 897-903 (“10F”); (4) a progress note signed on December 23, 2019, by Bhadmus Sunkanmi, nurse practitioner, Tr. 977 (“18F/4”), assessing myalgia, chronic migraine, spondylosis, intervertebral disc disorders, low backpain, radiculopathy and sacroiliitis, and listing medication for low back pain; and (5) a progress note signed by Dr. Jaafar on December 7, 2018, in connection with a spinal cord stimulator trial, indicating Vitarelli's skin, head, heart, neurological, lungs, abdomen, and extremities within normal limits and assessing CRPS, radiculopathy, lumbar region, and chronic pain syndrome, Tr. 1023 (“19F/35”).
Other than demonstrating that Vitarelli was diagnosed with CRPS and that she has been having migraines since the car accident, nothing in the specific pages cited by the ALJ indicates the severity of CRPS. On the contrary, a review of the remaining pages in the evidence cited by the ALJ indicates repeated and constant complaints of severe pain, including bilateral leg pain, Tr. 337, constant pain in the lower back, left leg, the neck area, bilateral calf area, Tr. 976, constant pain in the lower back area down into the left leg and increased pain in the neck area rated as 10/10 on a visual analog scale with 10 being the most unbearable pain ever felt, Tr. 1023, pain in the lumbar back radiating down into the buttocks, “slow to move the left extremity and moaned that she was having pain throughout performing this maneuver,” (Tr. 901), and “intractable and severe pain across the back and right leg that is unresponsive to conservative management including physical therapy, analgesic medications and interventional pain blocks,” (Tr. 614).
The ALJ also referenced her residual functional capacity assessment in support of the finding that the record does not indicate that CRPS causes more than minimal limitations on Vitarelli's ability to perform basic work activities. However, the ALJ did not address CRPS in the residual functional capacity assessment and her analysis of the opinion evidence consists of her findings that some evidence in the opinions assessed was supportive of the opinions while other evidence was not. Dr. Schwarz's opinion, which the ALJ found “somewhat persuasive” and on which she relied to support her residual functional capacity determination, does not mention CRPS. (Tr. 897-903). Thus, it is not clear what medical source evidence, if any, was the basis for the ALJ's determination that Vitarelli's CRPS was not severe.
Not having identified any evidence to support the finding that CRPS was not severe, causing no more than minimal limitations, the ALJ precluded a meaningful review of her finding. Given “that conflicting evidence in the medical record is not unusual in cases of RSDS due to the transitory nature of its objective findings and the complicated diagnostic process involved,” SSR 03-2P at *5, the ALJ's failure to provide explanation and support for her finding that CRPS was not severe, constitutes an error of law warranting remand.
Age Consideration
“When we decide whether you are disabled under § 404.1520(g)(1), we will consider your chronological age in combination with your residual functional capacity, education, and work experience.” 20 C.F.R. § 404.1563(a). The age categories include: (i) “a younger person (under age 50)”; (ii) a person “closely approaching advanced age (age 50-54)”; and (iii) a person of “advanced age (age 55 or older).” 20 C.F.R. § 404.1563(a). “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). If you are closely approaching advanced age (age 50-54), we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to adjust to other work.” 20 C.F.R. § 404.1563(d). “A ‘borderline situation' exists when there would be a shift in results caused by ‘the passage of a few days or months.' 43 Fed.Reg. 55359.” DisabilityAge Criterion of the Vocational Factors Reguls.-Use of Chronological Age Constitutionality, SSR 82-46C (S.S.A. 1982) (“SSR 82-46C”). “In the case of a borderline situation, the Secretary is directed to apply the guidelines flexibly to avoid dramatic shifts in results.” Id. n.4.
No fixed guidelines as to when a borderline situation exists are provided since such guidelines would themselves reflect a mechanical approach. Under title II, a period of disability cannot begin after a worker's disability insured status has expired. When the person last met the insured status requirement before the date of adjudication, the oldest
age to be considered is the person's age at the date last insured. In these situations, the person's age at the time of decisionmaking is immaterial.
Titles II & XVI: Determining Capability to Do Other Work-the Med.-Vocational Rules of Appendix 2, SSR 83-10 at *8 (S.S.A. 1983) (“SSR 8310”).
However where, as here, a Title II claimant's date last insured falls after the adjudication date, courts apply the claimant's age at the time of the decision, based on the reasoning explained by the Sixth Circuit:
This interpretation is consistent with the general thrust of the regulations. The relevant inquiry is whether the claimant has the ability to engage in substantial gainful activity. The fact that a claimant who is unable to engage in such activity at the time of the decision may have been able to do so at some point in the past goes to the question of the onset date, not the question of disability.Varley v. Sec'y of Health & Hum. Servs., 820 F.2d 777, 780-81 (6th Cir. 1987).
Medical Vocational Guidelines provide:
Where the findings of fact made with respect to a particular individual's vocational factors and residual functional capacity coincide with all of the criteria of a particular rule, the rule directs a conclusion as to whether the individual is or is not disabled. However, each of these findings of fact is subject to rebuttal and the individual may present evidence to refute such findings. Where any one of the findings of fact does not coincide with the corresponding criterion of a rule, the rule does not apply in that particular case and, accordingly, does not direct a conclusion of disabled or not disabled. In any instance where a rule does not apply, full consideration must be given to all of the relevant facts of the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations.
20 C.F.R. § Pt. 404, Subpt. P, App. 2, § 200.00(a).
Individuals approaching advanced age (age 50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work. When such individuals have no past work experience or can no longer perform vocationally relevant past work and have no transferable
skills, a finding of disabled ordinarily obtains. However, recently completed education which provides for direct entry into sedentary work will preclude such a finding. For this age group, even a high school education or more (ordinarily completed in the remote past) would have little impact for effecting a vocational adjustment unless relevant work experience reflects use of such education.
20 C.F.R. § Pt. 404, Subpt. P, App. 2, § 201.00(g).
On the date of the ALJ's decision, Vitarelli was four months and six days short of her 50th birthday. The Commissioner relies on the following cases in support of her argument:
Amato v. Berryhill, No. 16-CIV-6768, 2017 WL 11455346, at *22 (S.D.N.Y. Dec. 1, 2017), R&R adopted, 2019 WL 4175049 (S.D.N.Y. Sept. 3, 2019); Waldvogel v. Comm'r of Soc. Sec., 6:16-CV-0868 (GTS), 2017 WL 3995590 at *11 (N.D.N.Y. Sept. 11, 2017) (“Courts within the Second Circuit have concluded that three months constitutes the outer limits of a ‘few months' for the purposes of borderline age.”); Pennock v. Comm'r of Soc. Sec., 14-CV-1524, 2016 WL 1128126 at *11 (N.D.N.Y. Feb., 23, 2016) (“[A]mong the district courts in the Second Circuit, three months appears to delineate the outer limits of ‘a few months.'”).
In reply, Vitarelli relies on the following cases in support of her argument:
Mirante v. Saul, S.D.N.Y. No. 20-CV-4051 (JGK) (KNF), 2021 U.S. Dist. LEXIS 166526, at *17-18 (Sep. 1, 2021)(citing Lewis v. Comm'r of Soc. Sec., 666 F.Supp.2d 730, 738 (E.D. Mich. 2009) ("Generally, courts hold that a person within six months of the next higher age category is considered 'borderline.'"); Phillips v. Astrue, 671 F.3d 699, 703 (8th Cir. 2012) ("Our review of the case law and the circumstances of this case satisfies us that Phillips's four-month time period constitutes a borderline situation."); see also Metaxotos v. Barnhart, S.D.N.Y., 2005 U.S. Dist. LEXIS 26463, at *22-23 (Nov. 3, 2005)(noting the regulations do not clearly define when a borderline situation exists and collecting cases in which courts have held that six months is within the rule)(citing Cox v. Apfel, 1998 U.S. App. LEXIS 31318, No. 98-7039, 1998 WL 864118, at *4 (10th Cir. Dec. 14, 1998) (because plaintiff was within six months of next age category at time decision issued, ALJ erred by not addressing whether plaintiff was of borderline age); Smith v. Barnhart, 2002 U.S. Dist. LEXIS 1480, No. 00 Civ. 2643, 2002 WL 126107, at 2- 4 (N.D. Ill. Jan. 31, 2002) (noting that the cases tend to treat claimants
who are within six months of next age category as borderline); Freundt v. Massanari, 2001 U.S. Dist. LEXIS 18063, No. 00 C 456, 2001 WL 1356146, at *17-20 (N.D. Ill. Nov. 2, 2001) (six months and 12 days from next age category should have triggered inquiry by ALJ concerning borderline situation); Tousignant v. Apfel, 1998 U.S. Dist. LEXIS 3825, 1998 WL 142415, at *5 (N.D. Ill. Mar. 26, 1998)(finding that 10 months would seem to be borderline); Roush v. Heckler, 632 F.Supp. 710, 71112 (S.D. Ohio 1984) (six months borderline)).
Courts have recognized that a borderline situation exists where the claimant is within six months from the next age category, as the cases on which Vitarelli relies demonstrate. In Amato, on which the Commissioner relies, the court explained:
Plaintiff was born on May 5, 1960 and was approximately two months from his 55th birthday at the date of the ALJ's February 25, 2016 decision, and therefore borderline age category considerations appear to apply to plaintiff (Tr. 31, 172). Waldvogel v. Comm'r of Soc. Sec., supra, 2017 WL 3995590 at *11 (“Courts within the Second Circuit have concluded that three months constitutes the outer limits of a ‘few months' for the purposes of borderline age.”); see also Pennock v. Comm'r of Soc. Sec., (GTS/WBC) 7:14-CV-1524, 2016 WL 1128126 at *11 (N.D.N.Y. Feb., 23, 2016) (“[A]mong the district courts in the Second Circuit, three months appear to delineate the outer limits of ‘a few months.' ”); Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N. Y-1995)(concluding that the ALJ erred by failing to address borderline age situation of plaintiff who was three months away from next age category).
Amato v. Berryhill, No. 16CIV6768LAPHBP, 2017 WL 11455346, at *22 (S.D.N.Y. Dec. 1, 2017), report and recommendation adopted, No. 16CIV6768LAPHBP, 2019 WL 4175049 (S.D.N.Y. Sept. 3, 2019).
Both Amato and Waldvogel cited Pennock for the proposition that courts in this circuit concluded that three months constitutes the outer limits of “a few months” contemplated by the regulations, 20 C.F.R. § 404.1563(b), for the purpose of borderline age. The court in Pennock stated:
Plaintiff's argument fails because she was not in a “borderline age” situation. On August 1, 2011, Plaintiff was 53 years old, over a year away from turning 55 years-old, when she'd be categorized as “advanced age.” Although the “regulations do not clearly define the outer limits of a borderline situation,” among the district courts in the Second Circuit, three months appears to delineate the outer limits of “a few months.” Smolinski v. Astrue, 2008 WL 4287819, *4 (W.D.N.Y.2008); Davis v. Shalala, 883 F.Supp. 828, 838 (E.D.N.Y.1995) (three months borderline); Hill v. Sullivan, 769 F.Supp. 467, 471 (W.D.N.Y. 1991) (three months borderline); see also Gravel v. Barnhart, 360 F.Supp.2d 442, 446 n. 8 (N.D.N.Y.2005) (eleven months not borderline); Hunt v. Comm'nr of Social Security, No. 00-CV-706, 2004 WL 1557222, at *5 n. 14 (N.D.N.Y.2004) (eight months not borderline); but see Metaxotos v. Barnhart, No. 04-CV-3006, 2005 WL 2899851, at *8 (S.D.N.Y. Nov. 3, 2005) (six months, 14 days borderline). Plaintiff's argument fails because she was over a year from her change of age category as of her alleged onset date, well outside the parameters of a “borderline age” situation. Consequently, this Court finds no error in the ALJ's decision in this regard.Pennock, 2016 WL 1128126, at *11.
The Pennock court recognized that at least one court in this circuit, Metaxotos, found more than three months to be the borderline situation. The court stated in Metaxotos:
Some courts which have addressed this regulation have held that six months is within the rule. Cox v. Apfel, No. 98-7039, 1998 WL 864118, at *4 (10th Cir. Dec. 14, 1998) (because plaintiff was within six months of next age category at time decision issued, ALJ erred by not addressing whether plaintiff was of borderline age); Smith v. Barnhart, No. 00 Civ. 2643, 2002 WL 126107, at 2-4 (N.D.Ill. Jan. 31, 2002) (noting that the cases tend to treat claimants who are within six months of next age category as borderline); Freundt v. Massanari, No. 00 C 456, 2001 WL 1356146, at *17-20 (N.D.Ill. Nov. 2, 2001) (six months and 12 days from next age category should have triggered inquiry by ALJ concerning borderline situation); Tousignant v. Apfel, 1998 WL 142415, at *5 (N.D.Ill. Mar. 26, 1998) (finding that 10 months would seem to be borderline); Roush v. Heckler, 632 F.Supp. 710, 711-12 (S.D.Ohio 1984) (six months borderline).Metaxotos, 2005 WL 2899851, at *8.
Given that “[n]o fixed guidelines as to when a borderline situation exists are provided since such guidelines would themselves reflect a mechanical approach,” SSR 83-10, it is apparent from the cases cited by the parties that no defined outer limit exists in determining the borderline situation, and the Court rejects the Commissioner's invitation to apply such an outer limit, namely, three months, in this case. The ALJ did not consider Vitarelli's age at the time of the decision and failed to assess whether the borderline situation existed, in light of the fact that Vitarelli would be four month and six days short of her 50th birthday on the date of the decision.
The ALJ's failure was not harmless. The ALJ applied GRID rule 201.21, limited to no more than sedentary work and applicable to a person who is younger individual age 45-49, with at least high school education and non-transferable skills, without mentioning Vitarelli's borderline age situation. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. Had the ALJ considered the borderline age situation, the appropriate GRID rule would be 201.14, limited to no more than sedentary work and applicable to a person closely approaching advanced age, with at least high school education and no-transferable skills, directing a finding of disability. See 20 C.F.R. Pt. 404, Subpt. P, App. 2. In light of the agency's own directive to avoid mechanical approach to borderline situations, SSR 83-10, the ALJ's failure to consider the borderline age situation and whether the higher age category should have been applied in the circumstances of this case, where Vitarelli was four months and six days short of her 50th birthday, is a harmful error warranting remand.
RECOMMENDATION
For the foregoing reasons, I recommend that: (1) the plaintiff's motion for judgment on the pleadings, Docket Entry No. 22, be granted and the case remanded pursuant to sentence four of 42 U.S.C. §405(g); and (2) the Commissioner's motion for judgment on the pleadings, Docket Entry No. 26, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).