Brown v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

REGINALD B.,1 )

)

Plaintiff, )

)

vs. ) Case No. 3:22-cv-1369-DWD

)

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Under 42 U.S.C. § 405(g), Plaintiff seeks judicial review of the final agency decision

of Defendant, which denied Plaintiff’s application for Disability Insurance Benefits

(DIBs). As stated below, the Court REVERSES the final agency decision and REMANDS

the case for consideration of whether Plaintiff qualifies for the older age category.

I. Procedural History

Plaintiff was born on April 25, 1965. (Doc. 10-2, pg. 21). He protectively applied

for DIBs on March 4, 2020. Plaintiff stated a disability onset date of August 18, 2019, and

his date of last insured was September 30, 2019. (Doc. 10-2, pg. 14). The alleged disability

was related to coronary artery disease, hypertension, diabetes, and hyperlipidemia. (Doc.

10-3, pgs. 28-29). The claim was denied initially and on reconsideration. Plaintiff sought

a hearing, which was held on October 15, 2021, before an Administrative Law Judge

(“ALJ”). An Unfavorable Decision was issued on November 10, 2021. (Doc. 10-2, pgs. 14-

1Plaintiff’s full name will not be used due to privacy concerns.

23). The Appeals Council denied a request for review, so Plaintiff has exhausted his

administrative remedies. Plaintiff also applied for and was awarded Supplemental

Security Income (SSI), effective April 24, 2020, upon reaching 55 years-of-age. (Docs. 20,

pgs. 3-4; 27, pg. 2 n. 2). That award is not challenged in this case. (Docs. 20, pgs. 3-4; 27,

pg. 2 n. 2). The ALJ decision as to DIBs is now final and ripe for judicial review.2

II. Administrative Hearing

An administrative hearing was held on October 15, 2021. (Doc. 10-2, pg. 29). At

that time, the ALJ acknowledged that Plaintiff’s birthday was April 25, 1965, meaning he

was 56 years old at the time. (Doc. 10-2, pg. 44). The ALJ indicated its focus was on the

timeframe of August 2019, when Plaintiff alleged an onset of disability, and April 2020,

when Plaintiff turned 55 years old and was awarded SSI. (Doc. 10-2, pgs. 42-43, 55).

A vocational expert, Dr. Darrell Taylor, testified at the administrative hearing.

(Doc. 10-2, pg. 62). He was questioned about a hypothetical individual, 54 to 55 years-of-

age, with 12 years of education and the same past relevant work as Plaintiff. (Doc. 10-2,

pg. 64). The hypothetical individual could do light work and frequently climb ramps,

stairs, ladders, ropes, and scaffolds. (Doc. 10-2, pg. 64). The hypothetical individual could

frequently balance, stoop, kneel, crouch, and crawl. (Doc. 10-2, pg. 64). The hypothetical

individual could also frequently reach, handle, finger, and feel with the bilateral upper

extremities. (Doc. 10-2, pg. 64). Dr. Taylor opined that the hypothetical individual could

not perform the past relevant work at issue. (Doc. 10-2, pg. 64). There were no transferable

2The Court limits its discussion of the evidentiary record to the information that is relevant to

Plaintiff’s present arguments and the precise basis for the Court’s ruling.

skills, and the hypothetical individual was limited to unskilled work. (Doc. 10-2, pg. 64).

However, there were other jobs, constituting light and unskilled work, that the

hypothetical individual could perform. (Doc. 10-2, pgs. 64-65). If the hypothetical

individual was absent from those jobs at a rate of three times per month, the jobs could

not be maintained in a competitive work environment, such that the absences would

“soon result in termination.” (Doc. 10-2, pg. 65). Similarly, if the hypothetical individual

was off task at a rate of at least 20% of the workday, then he would not be able to maintain

competitive employment. (Doc. 10-2, pg. 65). Also, an employer would not tolerate one

to two additional breaks during the workday, in addition to what is normally allowed,

due to underlying medical impairments. (Doc. 10-2, pg. 66). Finally, Dr. Taylor testified

that Plaintiff has no skills that are transferable to the sedentary range. (Doc. 10-2, pg. 65).

III. General Legal Standards

To qualify for DIBs, a claimant must be disabled. To assess a disability, the ALJ

employs a “five-step sequential evaluation process.” See 20 C.F.R. § 404.1520(a)(1), (2), (4).

The ALJ asks whether: (1) the claimant is doing substantial gainful activity; (2) the

claimant has a severe medically determinable physical or mental impairment that meets

certain duration requirements or a combination of impairments that is severe and meets

the duration requirements; (3) the claimant has an impairment that meets or equals an

impairment listed in the regulations and satisfies the duration requirements; (4) in view

of the RFC and past relevant work, he can perform past relevant work; and (5) in view of

the claimant’s RFC, age, education, and work experience, he can adjust to other work.

See 20 C.F.R. § 404.1520(a)(4)-(g); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).

If the claimant is doing substantial gainful activity under step 1, does not have an

impairment or combination of impairments as described at step 2, can perform past

relevant work under step 4, or can adjust to other work under step 5, then the claimant is

not disabled. See 20 C.F.R. § 404.1520(a)(4)(i),(ii), (iv), (v). If the claimant has an

impairment that meets the requirements of step 3 or is incapable of adjusting to other

work under step 5, then he is disabled. See 20 C.F.R. § 404.1520(a)(4)(iii), (v). The claimant

has the burden of proof at steps 1 to 4. See Mandrell v. Kijakazi, 25 F.4th 514, 516 (7th Cir.

2022). At step 5, however, the burden shifts to Defendant to show that the claimant can

adjust to other work existing in “a significant number of jobs…in the national economy.”

See Young, 362 F.3d at 1000; accord Brace v. Saul, 970 F.3d 818, 820 (7th Cir. 2020).

Impairments and related symptoms may cause physical and mental limitations

that affect the ability to work. See 20 C.F.R. § 404.1545(a)(1). Steps 4 and 5 assess the most

a claimant can do at work despite those limitations. See 20 C.F.R. § 404.1545(a)(1);

accord SSR 96-8p, 1996 WL 374184, *2; Clifford v. Apfel, 227 F.3d 863, 872-73 n. 7 (7th Cir.

2000). As such, a residual functional capacity (“RFC”), which the ALJ completes after step

3 but before steps 4 and 5, assesses the ability to perform sustained physical and mental

activities in a work setting on a regular and continuing basis, i.e., for eight hours a day

and five days a week or an equivalent schedule. See Tenhove v. Colvin, 97 F. Supp. 2d 557,

568 (E.D. Wisc. 2013); SSR 96-8p, 1996 WL 374184, *2; accord Moore v. Colvin, 743 F.3d 1118,

1121 (7th Cir. 2014). An RFC must be based on the relevant medical and other evidence

contained in the record. See 20 C.F.R. § 404.1545(a)(3); SSR 96-8p, 1996 WL 374184, *2-3, 5.

In the RFC, the ALJ must identify the claimant’s functional limitations and assess

his work-related abilities on a function-by-function basis. See Tenhove, 97 F. Supp. 2d at

569; SSR 96-8p, 1996 WL 374184, *1, 3; accord Lechner v. Barnhart, 321 F. Supp. 2d 1015,

1036 (E.D. Wisc. 2004). The ALJ considers all impairments, including nonsevere

impairments, and the claimant’s ability to meet physical, mental, sensory, and other

requirements of work. See 20 C.F.R. § 404.1545(a)(2), (4); see also Alesia v. Astrue, 789 F.

Supp. 2d 921, 933 (N.D. Ill. 2011) (“[T]he ALJ must consider the combined effect of all

impairments, ‘even those that would not be considered severe in isolation.’ “). “An

impairment or combination of impairments is not severe if it does not significantly limit

[the] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522(a). And,

while a claimant’s statements of pain or other symptoms are considered, they alone are

not conclusive evidence of a disability. See 20 C.F.R. § 404.1529.

As to physical abilities, the ALJ assesses the nature and extent of physical

limitations, then determines the RFC for work activity on a regular and continuing basis.

See 20 C.F.R. § 404.1545(b). A limited ability to perform physical demands, such as sitting,

standing, walking, lifting, carrying, pushing, pulling, reaching, handling, stooping, or

crouching may reduce the ability to do “other work” at step 5. See 20 C.F.R. § 404.1545(b);

see also SSR 96-8p, 1996 WL 374184, *5-6. After identifying a claimant’s functional

limitations and assessing his work abilities on a function-by-function basis, the RFC may

be expressed by exertional category, such as “light” or “sedentary.” See Tenhove, 97 F.

Supp. 2d at 569; accord Lechner, 321 F. Supp. 2d at 1036; SSR 96-8p, 1996 WL 374184, *3. To

do a full range of work in an exertional category, the claimant must be able to perform

substantially all the functions at that level. See SSR 96-8p, 1996 WL 374184, *5-6.

Further, in the RFC, the ALJ must address medical source opinions. See SSR 96-8p,

1996 WL 374184, *7. If the RFC assessment conflicts with a medical source opinion, then

the ALJ must explain why the opinion was not adopted. See id.; accord Smith v. Colvin, 9

F. Supp. 3d 875, 887 (E.D. Wisc. 2014). Medical opinions are considered with the following

factors: (1) supportability; (2) consistency; (3) the relationship with the claimant;

(4) specialization; and (5) other factors supporting or contradicting the opinion, including

evidence showing familiarity with other evidence in the claim or an understanding of

disability policies and evidentiary requirements. See 20 C.F.R. § 404.1520c(c). The most

important factors to the persuasiveness of a medical opinion, however, are supportability

and consistency. See 20 C.F.R. § 404.1520c(a), (b)(2).3 The ALJ may, but is not required to,

explain how the other factors were considered. See 20 C.F.R. § 404.1520c(c)(3)-(5).

IV. The ALJ’s Decision

In view of Plaintiff’s alleged onset date of disability and date of last insured, the

ALJ found the question was whether Plaintiff was disabled between August 18, 2019, and

September 30, 2019. (Doc. 10-2, pgs. 14-15). At step 1, the ALJ found Plaintiff had not

engaged in substantial gainful activity. (Doc. 10-2, pg. 16). At step 2, the ALJ found

Plaintiff had the following severe impairments through the date of last insured:

degenerative changes in the bilateral knees, rhabdomyolysis, diabetes mellitus, diabetic

neuropathy, coronary artery disease, and obesity. (Doc. 10-2, pg. 16). Those medically

3The more relevant the objective medical evidence and supporting explanations presented by a

medical source are to support his or her medical opinions, the more persuasive the medical opinions will

be. See 20 C.F.R. § 404.1520c(c)(1). The more consistent medical opinions are with the evidence from other

medical sources and nonmedical sources in the claim, the more persuasive the medical opinions will be.

See 20 C.F.R. § 404.1520c(c)(2).

determinable impairments significantly limited Plaintiff’s ability to perform basic work

activities. (Doc. 10-2, pg. 16). Plaintiff also had hypertension and hyperlipidemia, which

were nonsevere. (Doc. 10-2, pgs. 16-17). At step 3, the ALJ found Plaintiff did not have an

impairment or combination of impairments that met or medically equaled the severity of

impairments listed in the regulations through the date of last insured. (Doc. 10-2, pg. 17).

Before proceeding to step 4, the ALJ assessed Plaintiff’s RFC. (Doc. 10-2, pg. 17).

The ALJ found Plaintiff could perform light work through the date of last insured. (Doc.

10-2, pg. 17). However, Plaintiff could frequently climb ramps, stairs, ladders, ropes, and

scaffolds. (Doc. 10-2, pg. 17). Plaintiff could also frequently balance, stoop, kneel, crouch,

and crawl. (Doc. 10-2, pg. 17). Plaintiff could frequently perform reaching, handling,

fingering, and feeling with the bilateral upper extremities. (Doc. 10-2, pg. 17). Although

Plaintiff’s medically determinable impairments could reasonably be expected to cause

the alleged symptoms, the ALJ found that Plaintiff’s statements about the intensity,

persistence, and limiting effects of those symptoms were not entirely consistent with the

medical evidence and the other evidence of record. (Doc. 10-2, pg. 19).

The ALJ discussed the treatment notes, medical opinions, and prior administrative

medical findings of record. (Doc. 10-2, pgs. 19-20). The prior administrative medical

findings of Dr. Vidya Madala were partially persuasive, as they were supported by

explanations and were consistent with the medical evidence. (Doc. 10-2, pg. 20). The prior

administrative medical findings of Dr. Douglas Chang were unpersuasive, as they were

supported by explanations but were not consistent with the medical evidence. (Doc. 10-

2, pg. 20). The medical source opinion of Plaintiff’s primary care physician, Dr. Khaja

Mohsin, was unpersuasive, as it was given after the date of last insured, was unsupported

by explanations of the evidence prior to the date of last insured, was unsupported by

treatment notes from prior to the date of last insured, and was inconsistent with the

medical record as a whole before the timeframe at issue. (Doc. 10-2, pg. 21).

At step 4, the ALJ found Plaintiff was unable to perform past relevant work, which

included work in construction and as a mechanic. (Doc. 10-2, pg. 21). Critical to the

arguments presented in this case, the ALJ noted, before proceeding to step 5, Plaintiff

“was born on April 25, 1965, and was 54 years old, which is defined as an individual

closely approaching advanced age, on the date [of] last insured.” (Doc. 10-2, pg. 21). The

ALJ did not say anything else about the age categories. (Doc. 10-2, pg. 21). Also, it was

noted that Plaintiff had at least a high school education and the transferability of job skills

was not material to the determination of disability. (Doc. 10-2, pg. 22). The medical-

vocational rules “support[ed] a finding that the claimant [wa]s ‘not disabled,’ whether or

not the claimant ha[d] transferable jobs skills.” (Doc. 10-2, pg. 22).

At step 5, the ALJ found, in consideration of Plaintiff’s age, education, work

experience, and RFC, there were jobs existing in significant numbers in the national

economy that he could have performed during the relevant timeframe. (Doc. 10-2, pg.

22). If Plaintiff had an RFC to perform the full range of light work through the date of last

insured, then the ALJ indicated it would be appropriate to find he was not disabled. (Doc.

10-2, pg. 22). However, the ALJ found Plaintiff’s ability to perform all or substantially all

of the requirements of light work was impeded by additional limitations. (Doc. 10-2, pg.

22). To determine the extent that those additional limitations eroded the unskilled light

work occupational base, through the date of last insured, the ALJ noted its queries of Dr.

Taylor, who indicated the hypothetical individual could perform light unskilled work

existing in significant numbers in the national economy. (Doc. 10-2, pg. 22). Based on that

testimony, the ALJ concluded Plaintiff was capable of adjusting to other work existing in

significant numbers in the national economy at step 5. (Doc. 10-2, pg. 23). Therefore, the

ALJ determined it was proper to find Plaintiff was “not disabled.” (Doc. 10-2, pg. 23).

V. Analysis

The Court’s review of the ALJ’s decision is “extremely limited” and “very

deferential.” See 42 U.S.C. § 405(g); Jarnutowski v. Kijakazi, 48 F.4th 769, 773 (7th Cir. 2022)

(quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)). Findings of fact, supported by

substantial evidence, are conclusive. See 42 U.S.C. § 405(g); accord Clifford, 227 F.3d at 869.

The Court will reverse the ALJ’s decision only if the findings of fact were not supported

by substantial evidence or the ALJ applied the wrong legal standard. See Clifford, 227 F.3d

at 869; accord Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020). “Substantial evidence means

‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’ ” See Clifford, 227 F.3d at 869 (quoting Richardson v. Perales, 402 U.S. 389, 401

(1971)); accord Jarnutowski, 48 F.4th at 773. If reasonable minds could differ about the

alleged disability and the ALJ’s decision is supported by substantial evidence, then the

Court will affirm the ALJ. See Jarnutowski, 48 F.4th at 773 (quoting Elder, 529 F.3d at 413).

The Court reviews the entire record, but does not reweigh the evidence, resolve conflicts,

decide credibility, or substitute its judgment for that of the ALJ. See Clifford, 227 F.3d at

869; accord Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). However, an

ALJ must build a logical bridge between the evidence and the conclusions.

See Jarnutowski, 48 F.4th at 773 (quoting Butler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021)).

Now, Plaintiff raises two issues for review: (1) whether the ALJ erred by failing to

consider the older age category, and (2) whether the ALJ erred in its consideration of the

medical opinions in the record. The Court finds the first issue is outcome determinative.

Plaintiff argues the ALJ failed to consider the older age category. (Doc. 20, pg. 3).

As of his date of last insured, Plaintiff was approximately 54 years and 5 months old.

Plaintiff argues he changed age categories on his 55th birthday, i.e., 6 months and 26 days

after the date of last insured. (Doc. 20, pg. 4).4 If the ALJ had limited Plaintiff to sedentary

work on or before the date of last insured, rather than to light work, then Plaintiff

suggests he would have met the Medical Vocational Guidelines for DIBs at step 5 due to

his combination of age, education, work experience, and exertional limitations. (Doc. 20,

pg. 4). According to Plaintiff, if a claimant who is “closely approaching advanced age”

cannot perform past relevant work and is limited to sedentary work, or if a claimant who

is “advanced age” cannot perform past relevant work and is limited to light work, then

it is assumed that there may be a serious effect on the claimant’s ability to adjust to other

work in the national economy at step 5. (Doc. 20, pg. 4).

Plaintiff notes the age categories are not applied “mechanically in a borderline

situation.” (Doc. 20, pg. 5). Therefore, an ALJ must consider whether to use the older age

category, after evaluating all of the factors in the case, if the claimant is within a few days

4The Court notes that Plaintiff incorrectly states, “Plaintiff changed age categories less than five (5)

months later, when he turned fifty-five (55) years of age.” (Doc. 20, pg. 4).

or months of reaching the older age category and the use of that category will result in a

disability determination. (Doc. 20, pg. 5). Plaintiff states he presents a “borderline

situation,” meaning he would have qualified for DIBs on or before September 30, 2019, if

the ALJ had used the older age category for “a person of advanced age.” (Doc. 20, pg. 5).

Nevertheless, in contravention of these principles and the directives of Defendant’s own

Hearing, Appeals, and Litigation Law Manual (“HALLEX”), Plaintiff argues the ALJ did

not mention the older age category or explain its decision not to apply that category in

this case. (Doc. 20, pgs. 5-6). Absent consideration of the older age category, Plaintiff

argues the ALJ’s decision is not supported by substantial evidence, requiring a remand.

In response, Defendant admits its HALLEX and Program Operations Manual

System “instruct agency adjudicators to explain in their decisions their consideration of

borderline age situations.” (Doc. 27, pg. 4). However, Defendant notes, to support the

ALJ’s use of the higher age category, “the evidence must show that the factors have a

progressively more adverse impact on the claimant’s ability to adjust to other work as the

period between the claimant’s actual age and attainment of the next higher age category

lengthens.” (Doc. 27, pg. 4). Also, to challenge the ALJ’s omission of a borderline age

discussion, Defendant states a claimant must plead harm, i.e., explain why the evidence

supports applying the older age category. (Doc. 27, pg. 4). Plaintiff allegedly makes no

“attempt to show factors that favored use of the higher age category.” (Doc. 27, pg. 6).

Relevantly, § 404.1563(b) of the regulations provides:

When we make a finding about your ability to do other work…we will use

the age categories in paragraphs (c) through (e) of this section. We will use

each of the age categories that applies to you during the period for which

we must determine if you are disabled. 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); see also Cox v. Kijakazi, No. 21-cv-3075, 2023 WL 5938078, *12 (C.D.

Ill. Sept. 11, 2023) (“An ALJ must consider the different age categories when determining

a claimant’s ability to work,” and the test for a “borderline situation” under § 404.1563(b)

is whether (1) the claimant’s age is within a few days or months of a higher age category

and (2) the use of the higher age category would result in a finding of disability); Teresa

G. S. v. Comm’r of Soc. Sec., No. 19-cv-583, 2020 WL 230706, *3-4 (S.D. Ill. Jan. 15, 2020)

(discussing § 404.1563(b) and the two-part test in the context of Defendant’s HALLEX);

HALLEX I-2-2-42(C)(5) (“The ALJ will explain in the decision that the ALJ considered the

borderline age situation, state whether the ALJ applied the higher age category or the

chronological age, and note the specific factor(s) the ALJ considered”).

Section 1563(d) of the regulations, which the ALJ found applied to Plaintiff, states:

“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.” See 24 C.F.R. § 1563(d). Section 1563(e) of the regulations,

which Plaintiff argues should have been considered due to the “borderline situation”

rule, provides: “We consider that at advanced age (age 55 or older), age significantly

affects a person’s ability to adjust to other work. We have special rules for persons of

advanced age and for persons in this category who are closely approaching retirement

age (age 60 or older).” See 24 C.F.R. § 1563(e).

The “borderline situation” rule is considered from the alleged onset date, the date

of last insured, or the date of the ALJ’s decision. See Cox, 2023 WL 5938078, *12 (quoting

Figueroa v. Astrue, 848 F. Supp. 2d 894, 901-02 (N.D. Ill. 2012)). The Seventh Circuit has

not addressed what an ALJ must show when considering the “borderline situation,” but

district courts in Illinois have held that a remand is required if the ALJ fails to make a

statement indicating it considered the proper age category for the claimant or explain its

decision. See id. at *13 (quoting Figueroa, 848 F. Supp. 2d at 899-900); accord Malgorzata K.

v. Kijakazi, No. 20-cv-296, 2022 WL 2257122, *3 (N.D. Ill. June 23, 2022); Jackson v. Kijakazi,

No. 20-cv-4466, 2022 WL 226009, *3 (N.D. Ill. Jan. 26, 2022); see also Teresa G. S., 2020 WL

230706, *3-4 (discussing the varying approaches to the “borderline situation” rule). In that

instance, it is impossible for a meaningful review of the age category issue. See Cox, 2023

WL 5938078, *12 (quoting Figueroa, 848 F. Supp. 2d at 899-900; citing Malgorzata K., 2022

WL 2257122, *3; Moody v. Berryhill, 245 F. Supp. 3d 1028, 1034-35 (C.D. Ill. Mar. 28, 2017);

Cisero v. Colvin, No. 14-cv-8419, 2016 WL 3568082, *3 (N.D. Ill. June 24, 2016); Pelech v.

Colvin, No. 14-cv-7021, 2016 WL 727208, *7 (N.D. Ill. Feb. 22, 2016)). The ALJ has the

discretion “to be ‘generous or exacting’ when considering a borderline age situation.”

See Jackson, 2022 WL 226009, *3, 4 (citing § 404.1563(b); McKay v. Colvin, No. 15-cv-9522,

2016 WL 6432582, *5 (N.D. Ill. Oct. 31, 2016); Figueroa, 848 F. Supp. 2d at 896). Again,

though, the ALJ must consider “borderline situations” and explain its analysis. See id.

Further, § 404.1563(b) does not state how many months is “a few months.” See Cox,

2023 WL 5938078, *12; see also Flores v. Colvin, No. 14-cv-518933, 2015 WL 518933, *10 (N.D.

Ind. Feb. 9, 2015) (stating there is no brightline rule for a “borderline situation”).

However, the “borderline situation” rule has been applied where the claimant was over

4, 5, or 6 months away from a change of age category. See, e.g., Cox, 2023 WL 5938078, *12

(remanding where the claimant was 5 months away from the next age category); Young

v. Barnhart, 287 F. Supp. 2d 905, 913 (N.D. Ill. 2003) (remanding where the claimant was

4 1/2 months away from the next age category); Graham v. Massanari, No. 00-cv-4669,

2001 WL 527326, *3 (N.D. Ill. May 9, 2001) (remanding where the claimant was 4 1/2

months away from the next age category); Pelech, 2016 WL 727208, *7 (remanding where

the claimant was 6 months and 9 days away from the next age category); Freundt v.

Massanari, No. 00-cv-4456, 2001 WL 1356146, *19 (N.D. Ill. Nov. 2, 2001) (remanding

where the claimant was 6 months and 12 days away from the next age category); Sopko v.

Colvin, No. 12-cv-6240, 2013 WL 5497276, *11 (N.D. Ill. Oct. 3, 2013) (remanding where

the claimant was 6 months and 8 days away from the next age category). Other cases,

though, suggest “a few months” should not exceed 6 months. See Jaimes v. Kijakazi, No.

20-cv-1372, 2022 WL 504078, *3 (E.D. Wisc. Feb. 18, 2022); Teresa G., 2020 WL 230706, *3.

Here, the Court finds it is proper to remand the case to the agency for

consideration of whether Plaintiff qualified for the older age category during the

timeframe at issue. In doing so, the Court notes Defendant does not contend the ALJ

actually did or was not required to consider the older age category. Indeed, Defendant

admits its HALLEX “instruct[s] agency adjudicators to explain in their decisions their

consideration of borderline age situations.” See HALLEX I-2-2-42(C)(5); (Doc. 27, pg. 4).

Defendant also outlines the ALJ’s approach to the issue and the factors considered in

“borderline situations.” See HALLEX II-5-3-2, I-2-2-42(C)(3); (Doc. 27, pg. 4). Rather than

argue the ALJ was not required to engage in the analysis, though, Defendant suggests

that Plaintiff inadequately alleged harm from the ALJ’s omission. (Doc. 27, pgs. 4-5).

The Court finds Defendant’s argument unpersuasive for two reasons. First, the

agency’s guidance documents and the legal authorities discussed herein indicate the ALJ

should have noted any “borderline situation” by stating its consideration of the proper

age category and explaining its decision. See Cox, 2023 WL 5938078, *13; Malgorzata K.,

2022 WL 2257122, *3; Jackson, 2022 WL 226009, *3; HALLEX I-2-2-42(C)(5). Again,

Defendant does not argue otherwise and, while there are broadly applicable factual

scenarios and some disagreements in the case law, the authorities show the time at issue,

6 months and 26 days, could constitute “a few months” under § 404.1563(b). See Pelech,

2016 WL 727208, *7; Freundt, 2001 WL 1356146, *19; Sopko, 2013 WL 5497276, *11. Without

a brightline rule or the ALJ’s consideration of the issue, the Court will not split hairs over

differences between 4, 5, or 6 months and 8, 9, 12, or 26 days. As noted above, the ALJ has

discretion “to be ‘generous or exacting’ when considering a borderline age situation,” so

6 months and 26 days could conceivably equate to “a few months.” See Jackson, 2022 WL

226009. *3, 4; Flores, 2015 WL 518933, *10; see also Figueroa, 848 F. Supp. 2d at 900 (“[I]t

would appear to be impossible to determine whether there had even been the required

exercise of discretion—assuming that determining which age category a claimant should

be placed is a discretionary matter rather than one requiring factual findings to be

made—the ALJ would have abused that discretion by failing to exercise it.”).

Second, while Defendant seeks to shift the blame to Plaintiff for the alleged failure

to allege harm, the Court finds it cannot adequately review the older age issue or the

relevant evidence, at first glance, without consideration by the ALJ. As the authorities

note, a meaningful review of the age category issue is difficult, if not impossible, if the

ALJ did not indicate its consideration of or explain its decision on the issue. See Cox, 2023

WL 5938078, *12-13 (remanding to the agency for the ALJ to analyze the borderline age

issue and explain the evidence considered when making the age category determination,

where the ALJ did not state whether the borderline age rule was considered, did not

indicate what factors were used to determine whether the rule applied, and in the absence

of that information it was impossible for the court to conduct a meaningful review of the

age category determination); Figueroa, 848 F. Supp. 2d at 899-900 (same); Malgorzata K.,

2022 WL 2257122, *3-4 (same); Pelech, 2016 WL 727208, *7-8 (agreeing with the other courts

in Illinois that more was required of the ALJ, where the ALJ failed to build a logical bridge

between the evidence and conclusions by not indicating whether the plaintiff’s

approaching 50th birthday presented a borderline age situation, whether the plaintiff’s

chronological age was applied in a mechanical fashion without further thought, whether

the ALJ deemed the plaintiff’s age insufficiently close to 50 years old to trigger a

borderline situation analysis and the basis for such a determination, or why the plaintiff’s

chronological age was chosen if, in fact, the ALJ found there was a borderline situation).

In any event, Defendant generally bears the burden of proof at step 5 and Plaintiff,

who could not perform past relevant work and was without transferable skills despite 12

years of education, alleged applying the older age category would result in disability at

step 5. See Young, 362 F.3d at 1000; (Docs. 10-2, pgs. 64-65; 20, pg. 4). Notable, too, is the

fact that Plaintiff, upon reaching 55 years-of-age in April 2020, was found to be disabled

for purposes of SSI. (Docs. 20, pgs. 3-4; 27, pg. 2 n. 2). In short, the Court finds the ALJ

should have indicated and explained its consideration of a “borderline situation” under

§ 404.1563(b). See § 404.1563(b); Cox, 2023 WL 5938078, *12; HALLEX I-2-2-42(C)(5)).

As an aside, the Court emphasizes that its review of ALJ decisions is immensely

deferential. Therefore, when the agency informs claimants through its regulations and

guidance documents that it will consider a particular issue, the Court believes it is

important that the issue actually be considered. However, the Court stresses that the ALJ

retains its discretion to consider the issue on remand. This Memorandum & Order should

not, in any way, be read to suggest a particular outcome on remand is appropriate.

VI. Conclusion

For these reasons, the Court REVERSES the final agency decision and REMANDS

the case for consideration of whether Plaintiff qualifies for the older age category.

SO ORDERED.

Dated: September 26, 2023.

s/ David W. Dugan

__________________________

DAVID W. DUGAN

United States District Judge