Cordova Rosado v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MANUEL ANGEL CORDOVA ROSADO,

Plaintiff,

v. Case No. 8:20-cv-1893-SPF

KILOLO KIJAKAZI,

Commissioner of the Social

Security Administration,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability,

disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As the

Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and

employed proper legal standards, the Commissioner’s decision is affirmed.

I. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 57). The

Commissioner denied Plaintiff’s claims (Tr. 79). Plaintiff then requested an

administrative hearing (Tr. 87). Per Plaintiff’s request, the ALJ held a hearing at which

Plaintiff appeared and testified (Tr. 27–52). Following the hearing, the ALJ issued an

unfavorable decision finding Plaintiff not disabled and accordingly denied Plaintiff’s

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021, and

is substituted as Defendant in this suit pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure.

claims for benefits (Tr. 11–21). Subsequently, Plaintiff requested review from the Appeals

Council, which the Appeals Council denied (Tr. 1). Plaintiff then timely filed a complaint

with this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g),

1383(c)(3).

II. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1964, claimed disability beginning June 14, 2018 (Tr.

57). Plaintiff completed his GED (Tr. 45). Plaintiff’s past relevant work experience

included work as a corporate driver, a de-icer of airplanes, a federal security officer, and a

staff supervisor (Tr. 45). Plaintiff alleged disability due to diabetes, left knee arthritis, left

shoulder arthritis, hypothyroidism, high blood pressure, and retinal hole (Tr. 58).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through March 31, 2022 and had not engaged in substantial

gainful activity since June 14, 2018, the alleged onset date (Tr. 13). After conducting a

hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the

following severe impairments: status post left knee and left shoulder surgery, left shoulder

adhesive capsulitis, later onset cervical and lumbar herniations, left knee meniscal tear,

left knee chondromalacia in patella, and medical compartment (Tr. 13). Notwithstanding

the noted impairments, the ALJ determined Plaintiff did not have an impairment or

combination of impairments that met or medically equaled one of the listed impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 14). The ALJ then concluded that

Plaintiff retained a residual functional capacity (“RFC”) to perform light work as defined

in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except he can occasionally lift and/or carry

up to twenty pounds and frequently lift and/or carry up to ten pounds. He can stand

and/or walk in combination, with normal breaks, for at least six hours during an eight-

hour workday and he can sit, with normal breaks, for six to eight hours during an eight-

hour workday. He is limited to occasional overhead reaching with non-dominant left arm,

occasional climbing, balancing, stooping, kneeling, crouching or crawling, and he would

have to avoid working at unprotected heights or with hazardous machinery (Tr. 14). In

formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective complaints and

determined that, although the evidence established the presence of underlying

impairments that reasonably could be expected to produce the symptoms alleged,

Plaintiff’s statements as to the intensity, persistence, and limiting effects of his symptoms

were not entirely consistent with the medical evidence and other evidence (Tr. 15).

Considering Plaintiff’s noted impairments and the assessment of a vocational

expert (“VE”), however, the ALJ determined Plaintiff could not perform his past relevant

work (Tr. 18). Given Plaintiff’s background and RFC, the VE testified that Plaintiff could

perform other jobs existing in significant numbers in the national economy, such as a

routing clerk, mail clerk, and housekeeping cleaner (Tr. 20). Accordingly, based on

Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the ALJ

found Plaintiff not disabled (Tr. 21).

III. Legal Standard

To be entitled to benefits, a claimant must be disabled, meaning he or she 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 twelve

months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment”

is an impairment that results from anatomical, physiological, or psychological

abnormalities, which are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential

review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

process, the ALJ must determine, in sequence, the following: whether the claimant is

currently engaged in substantial gainful activity; whether the claimant has a severe

impairment, i.e., one that significantly limits the ability to perform work-related functions;

whether the severe impairment meets or equals the medical criteria of 20 C.F.R. Part 404

Subpart P, Appendix 1; and whether the claimant can perform his or her past relevant

work. If the claimant cannot perform the tasks required of his or her prior work, step five

of the evaluation requires the ALJ to decide if the claimant can do other work in the

national economy in view of his or her age, education, and work experience. 20 C.F.R.

§§ 404.1520(a), 416.920(a). A claimant is entitled to benefits only if unable to perform

other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(g),

416.920(g).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938) (internal quotation marks omitted)); Miles v. Chater, 84 F.3d 1397,

1400 (11th Cir. 1996). While the court reviews the Commissioner’s decision with

deference to the factual findings, no such deference is given to the legal conclusions.

Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations

omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence

or substitute its own judgment for that of the ALJ even if it finds that the evidence

preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the

reviewing court sufficient reasoning for determining that he or she has conducted the

proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is

thus limited to determining whether the findings of the Commissioner are supported by

substantial evidence and whether the correct legal standards were applied. 42 U.S.C. §

405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002).

IV. Analysis

Plaintiff argues here that the ALJ erred by (1) failing to properly evaluate whether

Plaintiff needs to use a cane; (2) failing to properly consider Plaintiff’s subjective

complaints; and (3) failing to properly consider Plaintiff’s borderline age category. For

the reasons that follow, the ALJ applied the correct legal standards, and the ALJ’s decision

is supported by substantial evidence.

A. Use of Cane

First, Plaintiff contends the ALJ failed to properly evaluate his medical need for a

hand-held assistive device when determining his RFC2 (Doc. 28, p. 14). Specifically,

Plaintiff claims the ALJ erred by failing to include his need for a cane in contravention of

Social Security Ruling (“SSR”) 96-9p, which provides:

To find that a hand-held assistive device is medically required, there

must be medical documentation establishing the need for a hand-held

assistive device to aid in walking or standing, and describing the

circumstances for which it is needed (i.e., whether all the time,

periodically, or only in certain situations; distance and terrain; and any

other relevant information). The adjudicator must always consider the

particular facts of a case.

SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996). This ruling provides that the use of a

hand-held assistive device can erode the occupational base for sedentary work. Id.

“Under SSR 96-9p, a claimant must present medical documentation (1) establishing her

need for a cane or other device and (2) describing the circumstances for which it is

needed.” Charity v. Comm’r of Soc. Sec., No. 6:19-cv-1075-Orl-EJK, 2020 WL 5797623, at

*3 (M.D. Fla. Sept. 29, 2020) (citation omitted). Of course, absent such a showing, the

2 The RFC is defined as the most a claimant can do despite his limitations. 20 C.F.R. §

416.945(a)(1). To determine a claimant’s RFC, an ALJ makes an assessment based on all

of the relevant evidence of record as to what a claimant can do in a work setting despite

any physical, mental, or environmental limitations caused by the claimant’s impairments

and related symptoms. 20 C.F.R. § 416.945(a)(1), (3).

ALJ is not required to include the use of an assistive device in the RFC or hypothetical to

the vocational expert. Id. Courts have held that a prescription or lack of a prescription

for an assistive device is not necessarily dispositive of medical necessity. See Kendrick v.

Comm’r of Soc. Sec., No. 5:17-cv-244-Oc-18PRL, 2018 WL 4126528, *3 (M.D. Fla. July 9,

2018), report and recommendation adopted, 2018 WL 4112832 (M.D. Fla. Aug. 29, 2018).

“When the record reflects a purported need for a hand-held assistive device, but the ALJ

fails to affirmatively reject the need for such a device, the Court cannot be certain whether

the ALJ intended to recognize it.” Williams v. Acting Comm’r of Soc. Sec., No. 3:18-cv-764-

J-MCR, 2019 WL 2511592, at *4 (M.D. Fla. June 18, 2019) (citing Drawdy v. Astrue, No.

3:08-cv-209-J-HTS, 2008 WL 4937002, at *4 (M.D. Fla. Nov. 17, 2008)). On the other

hand, where an ALJ affirmatively rejects the need for a cane and gives reasons for doing

so based on substantial evidence, the ALJ has performed the necessary analysis. Wright

v. Colvin, No. CV 313–079, 2014 WL 5591058, at *5 (S.D. Ga. Nov. 3, 2014).

In this case, the ALJ acknowledged Plaintiff’s use of a cane and discussed whether

it is medically necessary (Tr. 16–18). The ALJ then affirmatively rejected Plaintiff’s need

for a cane and gave reasons for doing so based on substantial evidence. For example, the

ALJ stated that “while many notes showed the claimant used a cane, notes have also

showed he did not; more recent notes even showed his knees were stable with no redness,

heat swelling, or effusion” (Tr. 17). The ALJ was accurate in his observation that there

are inconsistencies in the record about Plaintiff’s use of a cane. Although Plaintiff

frequently used a cane (See, e.g., Tr. 34–35, 223, 479, 547), more recent records show that

Plaintiff was ambulatory with minimal assistance (Tr. 547, 549). As the ALJ noted, a July

2018 examination by Dr. Mont revealed that Plaintiff had no swelling or edema, had 5/5

strength, and ambulated normally (Tr. 18, 513). Dr. Mont also observed Plaintiff walking

one city block without an assistive device (Id.). Hospital records from September 2018

reveal that Plaintiff was ambulatory, had a normal range of motion, and only had mild

tenderness in his knee (Tr. 266–67, 280). Records from January 2019, after Plaintiff’s

second knee surgery, show that Plaintiff’s gait was non antalgic (Tr. 549).

Thus, substantial evidence supports the ALJ’s determination that a hand-held

assistive device was not medically necessary. As a result, the ALJ was not required to

include the use of a cane in Plaintiff’s RFC.

B. Subjective Complaints

Next, Plaintiff argues that the ALJ improperly evaluated his subjective complaints

of pain (Doc. 28, p. 22). In determining whether a claimant is disabled, the ALJ must

consider all symptoms, including pain, and the extent to which those symptoms are

reasonably consistent with the objective medical evidence and other evidence. 20 C.F.R.

§ 416.929(a). Once a claimant establishes that his pain or other subjective symptoms are

disabling, “all evidence about the intensity, persistence, and functionally limiting effects

of pain or other symptoms must be considered in addition to the medical signs and

laboratory findings in deciding the issue of disability.” Land v. Comm’r of Soc. Sec., 843 F.

App’x 153, 155 (11th Cir. 2021) (quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir.

1995)).

The Eleventh Circuit has established a three-part “pain standard” for the

Commissioner to apply in evaluating a claimant’s subjective complaints. The standard

requires: (1) evidence of an underlying medical condition; and either (2) objective medical

evidence to confirm the severity of the alleged pain arising from that condition, or (3) that

the objectively determined medical condition is of such severity that it can reasonably be

expected to give rise to the alleged pain. Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

1991). “When evaluating a claimant's subjective symptoms, the ALJ must consider such

things as: (1) the claimant's daily activities; (2) the nature, location, onset, duration,

frequency, radiation, and intensity of pain and other symptoms; (3) precipitating and

aggravating factors; (4) adverse side-effects of medications; and (5) treatment or measures

taken by the claimant for relief of symptoms.” Davis v. Astrue, 287 F. App'x 748, 760 (11th

Cir. 2008) (citing 20 C.F.R. § 404.1529(c)(3)(i)-(vi)). If an ALJ rejects a claimant’s

subjective testimony, he must articulate explicit and adequate reasons for his decision.

Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).3

The regulations define “objective evidence” to include medical signs shown by

medically acceptable clinical diagnostic techniques or laboratory findings. 20 C.F.R. §

416.929(c)(2). “Other evidence” includes evidence from medical sources, medical history,

and statements about treatment the claimant has received. See 20 C.F.R. § 416.929(c)(3).

In the end, subjective complaint evaluations are the province of the ALJ. Mitchell v.

Comm’r of Soc. Sec., 771 F.3d 780, 782 (11th Cir. 2014).

3 In 2017, the SSA issued new guidance to ALJs about how to evaluate subjective

complaints of pain and other symptoms. The SSA eliminated the use of the term

“credibility” from its sub-regulatory policy, as the Regulations do not use this term. SSR

16-3p, 2017 WL 5180304, *2 (Oct. 25, 2017). This change “clarif[ied] that subjective

symptom evaluation is not an examination of an individual’s character.” Id.

Here, the ALJ relied on boilerplate language in assessing Plaintiff’s subjective pain

complaints:

After careful consideration of the evidence, the undersigned finds that

the claimant’s medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the claimant’s

statements concerning the intensity, persistence and limiting effects of

these symptoms are not entirely consistent with the medical evidence

and other evidence in the record for the reasons explained in this

decision.

(Tr. 15). This language directly addresses the Eleventh Circuit’s pain standard and is not

improper if supported by substantial evidence. See Danan v. Colvin, No. 8:12-cv-7-T-

27TGW, 2013 WL 1694856, at * 3 (M.D. Fla. Mar. 15, 2013), report and recommendation

adopted 2013 WL 1694841 (M.D. Fla. Apr. 18, 2013).

Here, the Court finds that it is. In evaluating Plaintiff’s subjective complaints, the

ALJ explained that Plaintiff’s allegations were not supported by his treatment records (Tr.

15–17). The ALJ explained that Plaintiff’s alleged onset date coincided with a left knee

procedure, but by the end of July 2018, Plaintiff had full strength and ambulated normally

without an assistive device (Tr. 15–16, 212–20, 513). Plaintiff underwent a second

procedure for his knee in December 2018, but on subsequent examinations, Plaintiff’s

knee was stable (Tr. 16, 355–56, 541–45). Plaintiff also had a full range of motion without

crepitus, full strength, normal coordination, normal sensation, and normal reflex. (Tr. 17,

481, 547, 549, 718). More recent notes show that Plaintiff’s knee was stable with no

redness, heat, swelling, or effusion (Tr. 549, 718). The ALJ also considered Plaintiff’s

own reports of daily activities, Plaintiff’s failure to pursue physical therapy, and Plaintiff’s

failure to take prescribed medications (Tr. 17).

Plaintiff argues that the ALJ’s “heavy reliance” on Plaintiff’s daily activities to

discredit Plaintiff’s testimony was inappropriate, as courts in the Eleventh Circuit

recognize that “participation in everyday activities of short duration, such as housework

or fishing, [should not disqualify] a claimant from disability.” (Doc. 28, p. 23 (quoting

Varner v. Astrue, No. 3:09-CV-1026-J-TEM, 2011 WL 1196422, at *6 (M.D. Fla. Mar. 29,

2011)) (alterations in original)). Plaintiff correctly points out that, to support his

conclusion, the ALJ cites to abilities that—on their own—could not be considered

substantial evidence to support the ALJ’s subjective complaint determination. Simply

put, Plaintiff’s ability to watch television, manage his finances, and socialize via telephone

are not inconsistent with Plaintiff’s reports of knee, back, and shoulder pain.

Plaintiff further argues that the ALJ erred in considering Plaintiff’s failure to pursue

physical therapy, because Plaintiff could not locate a physical therapist who would accept

his insurance, and inability to pay constitutes good cause for not following prescribed

treatment under SSR 18-3p. See SSR 18-3p, 2018 WL 4945641, at *5 (Oct. 2, 2018). While

this is one of the listed reasons for Plaintiff’s failure to attend physical therapy, it is not the

only reason (Tr. 656). Plaintiff also stated that he did not want to attend physical therapy

until his pain resolved, but those same treatment notes indicate that his pain was

adequately controlled by his Meloxitan prescription (Tr. 656–57). The ALJ acknowledged

this inconsistency in his consideration of Plaintiff’s subjective complaints (Tr. 16). This

was not improper.4

4 Plaintiff suggests that he stated that his pain was under control because he did not want

to take opioids. The mere possibility that there is an alternative explanation for this

statement is insufficient for this Court to conclude that the ALJ erred. This Court is not

Finally, Plaintiff argues that the ALJ erred in considering Plaintiff’s failure to take

his medications, as treatment notes indicate that Plaintiff refrained from taking oxycodone

out of concerns for developing an opioid addiction (Tr. 656), which also constitutes good

cause for not following prescribed treatment under SSR 18-3p. See 2018 WL 4945641, at

*6. It does not appear that the ALJ relied on Plaintiff’s failure to take opioids, however.

Indeed, the ALJ’s opinion cites to treatment records relating to Plaintiff’s failure to

consistently take anti-inflammatories after his first knee surgery (Tr. 16, 513).5

Accordingly, the ALJ’s consideration of Plaintiff’s failure to take prescribed medications

in making his determination was not erroneous.

In summary, the ALJ based his determination of Plaintiff’s subjective complaints

on Plaintiff’s treatment records, which constitutes substantial evidence in support of his

determination. The ALJ did not err in identifying Plaintiff’s failure to seek physical

therapy and take prescribed medications, as those factors qualify as additional evidence in

support of the ALJ’s determination. Accordingly, because substantial evidence supports

the ALJ’s determination, any reliance on Plaintiff’s daily activities was harmless error.

See Brown v. Comm’r of Soc. Sec., 459 F. App’x 845, 846 (11th Cir. 2012) (“Finally, although

the ALJ erroneously found that Brown had not sought treatment for her mental health

issues over an eighteen-year period prior to 2007, this error was harmless because the

permitted to reweigh the evidence or substitute its judgment for that of the ALJ. See

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

5 Plaintiff also suggests that the only other medications he failed to consistently take were

unrelated to his knee, shoulder, and back pain (Tr. 264, 269, 615, 645). As set forth above,

however, Plaintiff also failed to take anti-inflammatories following his knee surgery (Tr.

513).

remaining evidence provided a substantial basis for the ALJ’s conclusion.”); Wright, 2014

WL 5591058, at *7 (misstatements in credibility determination were harmless where the

ALJ otherwise had a sufficient basis for the credibility determination even absent the

misstatements).

Considering this, Plaintiff has not shown that the ALJ ran afoul of the Eleventh

Circuit’s pain standard. See Holt, 921 F.2d at 1221. The ALJ articulated specific and

adequate reasons for discrediting Plaintiff’s subjective complaints. Foote, 67 F.3d at 1561–

62. To the extent Plaintiff asks the Court to re-weigh the evidence or substitute its opinion

for that of the ALJ, it cannot. If the ALJ’s findings are based on the correct legal standards

and are supported by substantial evidence – as they are here – the Commissioner’s decision

must be affirmed even if the undersigned would have reached a different conclusion. See

Bloodsworth, 703 F.2d at 1239. On this record, the ALJ did not err in considering Plaintiff’s

subjective complaints.6

C. Borderline Age Category

Finally, Plaintiff argues that the ALJ failed to properly consider Plaintiff’s

borderline age category. Plaintiff was born on October 16, 1964, and he was fifty-three

on the date the application was filed (Tr. 57). On July 9, 2019, when the evidentiary

6 The undersigned reiterates that, when reviewing an ALJ’s decision, the Court’s job is to

determine whether the administrative record contains enough evidence to support the

ALJ’s factual findings. See 42 U.S.C. § 405(g); Biestek v. Berryhill, ___ U.S. ___; 139 S.Ct.

1148, 1154 (2019). “And whatever the meaning of ‘substantial’ in other contexts, the

threshold for such evidentiary sufficiency is not high.” Id. In other words, the Court is not

permitted to reweigh the evidence or substitute its own judgment for that of the ALJ even

if it finds the evidence preponderates against the ALJ’s decision. See Bloodsworth, 703 F.2d

at 1239.

hearing was held, Plaintiff had reached the age of fifty-four years and about nine months.

On October 1, 2019, the ALJ issued his written decision denying Plaintiff benefits (Tr. 11–

21). At the time of the ALJ’s decision, Plaintiff was fifty-four years and just over eleven

months—only twelve days shy of his fifty-fifth birthday (Tr. 57).

Notably, Plaintiff does not contend that the ALJ failed to consider Plaintiff’s

borderline age category, but instead seems to suggest that the ALJ’s reasons for deciding

not to apply the higher category are not supported by substantial evidence (Doc. 28, pp.

33–35). In response, Defendant states that the mere fact that Plaintiff is nearing an older

age category does not automatically result in Plaintiff being placed in the older age

category. In other words, Defendant argues that the denial of benefits should be affirmed

because Plaintiff failed to meet his burden or proffer evidence that his ability to adapt was

less than the level established under the Grids for persons of his age who are capable of

his RFC (Id., p. 37).

When the disability evaluation process reaches step five, an ALJ must consider a

claimant’s RFC along with vocational factors, such as age, in determining whether the

claimant is able to do other work. 20 C.F.R. § 416.920(a)(4)(v). In applying the grid rules,

which were promulgated to improve the uniformity and efficiency of step five

determinations, a claimant’s age is considered by reference to one of three categories.

Heckler v. Campbell, 461 U.S. 458, 461 (1983); see 20 C.F.R. § 416.963. The following

relevant age categories are set forth by the regulations:

1) Person closely approaching advanced age. 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.

2) Person of advanced age. 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).

20 C.F.R. § 416.963(d) & (e).

The regulations provide for the following procedure in a “borderline situation”:

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. § 416.963(b). Accordingly, such a “borderline situation” exists where (1) the

claimant is “within a few days to a few months” of the next older age category; and (2)

applying the grid rules for that older age category would result in a determination that the

claimant is disabled. Id. The ALJ must “consider” whether the next older age category

should be used when those two conditions are present. Id.

As to the first condition, Plaintiff was clearly within a few days to a few months of

the next age category. See, e.g., Dubyna v. Colvin, No. 8:13–CV–1966–T–TGW, 2014 WL

4660363, at *8 (M.D. Fla. Sept. 17, 2014) (“Although there is no bright line rule for how

many months is borderline, the predominant view is that six months from the next age

category is the outer limit.”). As for the second condition, it appears to be undisputed by

the parties that when Plaintiff turned 55, he would have been found disabled based on grid

rule 202.06. (Doc. 28, pp. 33–38); see 20 C.F.R. Part 404, Subpt. P, App. 2 § 202.06. As

such, Plaintiff is properly considered to be in a “borderline situation.”

There is no requirement, however, to automatically apply the higher age category

when a claimant falls into the borderline age situation. See Program Operations Manual

System (“POMS”)7 DI 25015.006 (“Do not use the higher age category automatically in

a borderline situation.”). Instead, the ALJ is required to “consider whether to use the

older age category after evaluating the overall impact of all the factors of [a claimant’s]

case.” 20 C.F.R. § 416.963(b). That is what the ALJ did in this case.

The ALJ found Plaintiff was an individual “closely approaching advanced age” at

step five of the sequential evaluation process and relied on the VE’s opinion that there are

jobs that exist in significant numbers that Plaintiff can perform, considering his “age,

education, work experience, and residual functional capacity” (Tr. 19–20). The ALJ also

expressly discussed Plaintiff’s borderline situation, stating that he was “mindful that the

claimant will turn age 55 shortly after the issuance of this decision,” but that he did not

find there to be “additional adverse factors which would warrant consideration of a

borderline age situation and non-mechanical application of the medical-vocational

guidelines.” (Tr. 20).

As such, the ALJ relied upon the testimony of the VE and did not mechanistically

or exclusively rely on the guidelines. See Miller v. Comm’r of Soc. Sec., 241 F. App’x 631,

635–36 (11th Cir. 2007) (per curiam) (concluding that “the ALJ did not rely exclusively

7 The Social Security agency promulgated the POMS as “publicly available operating

instructions for processing Social Security claims,” but these administrative

interpretations “are not products of formal rulemaking.” Wash. State Dep’t of Soc. & Health

Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385 (2003). As such, the Eleventh

Circuit has stated that “POMS can be persuasive” but “does not have the force of law.”

Wells v. Comm’r of Soc. Sec., 430 F. App’x 785, 786 (11th Cir. 2011) (per curiam).

on the grids” where the ALJ relied on the testimony of a VE); Dubyna, 2014 WL 4660363,

at *8 (finding no error where Appeals Council based its determination upon the testimony

of a VE, and “[t]herefore, there was neither an improper reliance on the guidelines nor a

mechanical application of the age category”); Hayes v. Astrue, No. 3:07-CV-137, 2009 WL

481473, at *2-3 (M.D. Ga. Feb. 23, 2009) (finding no error where “the ALJ relied upon

the testimony of a vocational expert, and did not mechanically apply the grids”).

Moreover, to justify the use of the older age category, there must be a proffer of

additional vocational adversities that create a lesser ability to adapt. See Huigens v. Soc.

Sec. Admin., Comm’r, 718 F. App’x 841, 847 (11th Cir. 2017). Here Plaintiff failed to

suggest any additional adversities that would require application of the older age category.

Hutchinson v. Bowen, 787 F.2d 1461, 1465 (11th Cir. 1986) (claimant has burden of

producing substantial evidence of lesser ability to adapt than chronological age); Reeves v.

Heckler, 734 F.2d 519, 525-26 (11th Cir. 1984) (same). Plaintiff failed to make any such

proffer.

For these reasons, the ALJ properly considered whether to use the older age

category after evaluating the overall impact of all the factors of Plaintiff’s case, applied the

correct legal standards, and made findings supported by substantial evidence.

V. Conclusion

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is affirmed.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and

close the case.

ORDERED in Tampa, Florida, on this 2nd day of March 2022.

Are

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

18