Thomas v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KIMBERLY J. THOMAS, : No. 4:24-CV-1077

Plaintiff : (Mehalchick, J.)

Vv. (Caraballo, M..J.)

FRANK BISIGNANO,

Commissioner of Social :

Security Administration, :

Defendant

REPORT & RECOMMENDATION

I. Introduction

Plaintiff Kimberly Thomas seeks judicial review of the final

decision of the Commissioner of Social Security Administration (“the

Commissioner”) denying her application for disability benefits under

Title XVI of the Social Security Act. The Court has jurisdiction

pursuant to Title 42, United States Code, Section 405(g).

This matter was referred to the undersigned to prepare a Report

and Recommendation addressing the merit of an alleged error that

Administrative Law Judge (“ALJ”) Michelle Wolfe committed when

determining that Thomas was not disabled under the Social Security

Act. Namely, Thomas claims that the ALJ failed to evaluate her as

someone of “advanced age” instead of “closely approaching advanced

age,” when she was only approximately 8% months away from meeting _

the 55-year threshold for qualifying as “advanced age.” Doc. 15 at 4-5.

According to Thomas, had the ALJ considered her a “Borderline Age

Situation” that qualified for the advanced age category, she would have

been found disabled. Jd. at 5.1 The matter is fully briefed and ripe for

decision.

As explained below, an analysis of the applicable regulations and

interpretive authorities concludes that ALJ Wolfe appropriately

categorized Thomas as an applicant closely approaching advanced age,

and was not required to conduct a borderline situation analysis. The

ALJ’s conclusion was supported by substantial evidence in the record,

coupled with sufficient reasoning to permit meaningful judicial review.

Accordingly, the undersigned respectfully recommends that the District

Court affirm the Commissioner’s decision to deny Thomas’s claim for

social security disability benefits.

1 As the Commissioner correctly observes, medical evidence is irrelevant to this

appeal because Thomas raises only one legal issue—her age. Doc. 19 at 7 n.2.

Therefore, this Report and Recommendation contains minimal discussion of medical

evidence.

II. Background

On July 6, 2021, Thomas applied for social security disability

benefits, alleging complete disability from depression; anxiety disorder;

asthma; knee, hip, and back problems; bipolar disorder; hypotension;

ADHD; and sleep problem. Tr.258—59. At the time of the application,

Thomas was 52 years old. Id. at 29. The Social Security

Administration (“SSA”) denied Thomas’s application on December 10,

2021. Id. at 91-94. Thomas requested reconsideration, but her

application was denied again on August 16, 2022. Id. at 102-04.

Thomas accordingly requested and received a hearing. Jd. at 14, 105.

The hearing, held on July 13, 2023, concerned whether Thomas

was disabled within the meaning of the Social Security Act since July 6,

2021, the application date. Id. at 19. ALJ Wolfe evaluated clinical

records, medical history, medical expert reports, vocational expert

testimony, and Thomas’s own testimony. Jd. at 38-57. Based on the

evidence, the ALJ denied Thomas’s disability claim on August 24, 2028,

finding that she was not disabled during the period at issue. Id. at 14—

2 The administrative record, referred to herein as “Tr.,” encompasses Docs. 11, 11-1,

11-2, 11-3, 11-4, 11-5, 11-6, 11-7.

31. At the time of the ALJ’s decision, Thomas was 54 years old. Id. at

29. ALJ Wolfe reached her conclusion by employing a five-step

analytical process required under the Social Security Act to evaluate

disability insurance and supplement security income claims. See

20 C.F.R. § 404.1520(a)(4).

The process requires sequential consideration of: (1) whether the

claimant is engaged in substantial gainful work activity; (2) the medical

severity of the claimant’s impairments; (8) whether the impairment

meets or equals a defined list of impairments; (4) a comparison between

the claimant’s past relevant work and residual functional capacity, Le.,

the most work that a claimant can perform despite his or her

limitations, see id. § 404.1545(a); and (5) an assessment of the

claimant’s residual functional capacity and his or her age, education,

and work experience. Id. § 404.1520(a)(4)@)-(v). Should a claimant

proceed past the first three steps, the Commissioner will not find the

claimant disabled when he or she can perform past relevant work under

the third step or adjust to other work under the fourth step. Id.

§ 404.1520(a)(4)(av)—(v), (, (g).

Applying that analysis, the ALJ first determined that Thomas did

not engage in substantial gainful activity since her alleged disability

onset date of July 6, 2021. Tr. 19. At the second step of the analysis,

the ALJ found that Thomas suffered from thirteen severe impairments:

asthma, emphysema, chronic obstructive pulmonary disease,

degenerative disc and joint diseases, osteoarthritis, patellofemoral

syndrome, major depressive disorder, bipolar disorder, generalized

anxiety disorder, alcohol use disorder, and insomnia. Id. at 19—20.

Moving to the third step of the analysis, the ALJ determined that

Thomas’s impairments failed to meet or medically equal one of the

impairments listed in the SSA’s regulations. Jd. at 20—23; see also

20 C.F.R. § 404.1520(a)(4)(1i). Accordingly, the ALJ proceeded to

determine Thomas’s residual functional capacity before addressing the

final two steps in the sequential analysis. Based on the medical

evidence of record, which included Thomas’s own testimonies and other

medical evidence on her physical impairments, the ALJ concluded that

Thomas had “the residual functional capacity to perform light work as

defined in 20 CFR 416.967(b),” subject to a series of listed limitations.

Tr. 24.

KK

Having determined Thomas’s residual functional capacity, ALJ

Wolfe proceeded to the fourth step of the analysis. Here, the ALJ noted

that Thomas had no relevant past work, rendering the transferability of

job skills irrelevant to her application. Id. at 29-80. ALJ Wolfe also

observed that Thomas attended school through the ninth grade. Jd. Of

particular relevance to this Report and Recommendation, the ALJ

stated:

The claimant was born on May 10, 1969, and was 52 years old,

which is defined as an individual closely approaching

advanced age, on the date the application was filed (20 C.F.R.

416.968).

The claimant was fifty-two years of age as of the application

date and is currently fifty-four years of age, and, therefore,

has been an individual closely approaching advanced age for

the entire relevant time period.

Id. at 29.

Finally, in the fifth step of the sequential analysis, ALJ Wolfe

considered Thomas’s age, education, work experience, and residual

functional capacity to perform light work, concluding that Thomas

“Twa|s capable of making a successful adjustment to other work that

exists in significant numbers in the national economy.” Jd. at 30-81.

Here, the ALJ leveraged testimony provided by vocational expert Nancy

Shapero that a person fitting Thomas’s parameters could meet the

eC

requirements of “representative occupations” such as a price marker,

file clerk, or hand bander. Id. at 30.

As a result of this analysis, ALJ Wolfe determined that Thomas

was not disabled and denied her application for disability benefits. Id.

at 14-16. Thomas unsuccessfully appealed the denial to the SSA’s

Appeals Council. Id. at 1-8. This appeal to the District Court followed

on July 1, 2024. Doc. 1. The Commissioner provided the requisite

transcripts from the disability proceedings on August 20, 2024.

Docs. 10-11. The parties then filed their respective briefs. Docs. 15, 19.

Thomas alleges a single error purportedly warranting reversal or

remand. Doc. 15 at 3. Specifically, Thomas alleges that the ALJ “did

not consider the possibility of a borderline situation, when [she] was

only approximately eight months from the [advanced] age category...

at the time of the ALJ decision.” Jd.

3 Thomas also raises an issue about the fact that she was “just four days from the

same at the time of the Appeals Council denial of her request for review.” Doc. 15

at 8. But, since the Appeals Council denied Thomas’s request for review instead of

issuing a merit-based opinion, the administrative decision is the final decision that

is subject to judicial review. 20 C.F.R. §§ 416.1400(a)(8) (“If you are dissatisfied

with the reconsideration determination, you may request a hearing before an

administrative law judge.”), (4) (“If you are dissatisfied with the decision of the

administrative law judge, you may request that the Appeals Council review the

decision.”), (5) (“When you have completed the steps of the administrative review

process listed in paragraphs (a)(1) through (a)(4) of this section, we will have made

our final decision. If you are dissatisfied with our final decision, you may request

III. Discussion

A. Standard of Review

Review of the Commissioner’s decision denying a claimant’s

application for social security disability benefits is limited to

determining whether the factual findings of the final decisionmaker are

supported by substantial evidence in the record. See 42 U.S.C. § 405(g);

Johnson v. Comm’ of Soc. Sec., 529 F.3d 198, 200 (8d Cir. 2008).

Substantial in this context is “more than a mere scintilla of evidence

but may be less than a preponderance.” Brown v. Bowen, 845 F.2d

1211, 1218 (8d Cir. 1988) (citation omitted).

Under this deferential standard, “[f]actual findings which are

supported by substantial evidence must be upheld.” Ficca v. Astrue,

901 F. Supp. 2d 588, 536 (M.D. Pa. 2012) (citations omitted); 42 U.S.C.

judicial review by filing an action in a Federal district court.”), 416.1455(b) (“The

decision of the administrative law judge is binding on all parties to the hearing

unless—You or another party requests a review of the decision by the Appeals

Council within the stated time period, the Appeals Council denies your request for

review, and you seek judicial review of your case by filing an action in a Federal

district court.”), 416.1481 (“The Appeals Council may deny a party’s request for

review or it may decide to review a case and make a decision. The Appeals

Council’s decision, or the decision of the administrative law judge if the request for

review is denied, is binding unless you or another party file an action in Federal

district court.”); see also Sims v. Apfel, 530 U.S. 108, 107 (2000) (establishing that, if

“the [Appeals] Council denies the request for review, the ALJ’s opinion becomes the

final decision.” (citations omitted)).

§ 405(g). This court’s role is not to reweigh the evidence and make

factual determinations, but to simply review the record and ensure that

the ALJ provided “a discussion of the evidence and an explanation of

reasoning for his conclusion sufficient to enable meaningful judicial

review.” Diaz v. Comm’ of Soc. Sec., 577 F.3d 500, 504 (8d Cir. 2009)

(citations and quotations omitted).

Here, ALJ Wolfe’s factual finding that Thomas fell under the

“closely approaching advanced age” category was supported by

substantial evidence in the record, and the reasoning underlying that

conclusion was sufficiently articulated to permit judicial review.

B. Thomas’s Age Category

Thomas asserts that the ALJ erred by deeming her an applicant

closely approaching advanced age. Doc. 15 at 3. Specifically, Thomas

contests the ALJ’s failure to consider her a “borderline situation,” as she

was “only approximately eight months from the next age category... at

the time of the ALJ decision.” Jd.4 According to Thomas, her case

warrants a remand, because that 8%-month gap qualified as “a few

4 There is no dispute that, as the Commissioner observes, Thomas was “54 years, 3

months, and 15 days old” on the date of the ALJ’s decision. Doc. 19 at 7.

months” prior to her 55th birthday. Jd. at 5. This argument, however,

runs contrary to policy, appellate authority, and the plain meaning of

the phrase. Thus, the ALJ was not required to consider evaluate

Thomas as a borderline situation in the first instance.

At the fifth step of the sequential analysis, the ALJ considers the

claimant’s residual functional capacity with vocational factors, which

include the claimant’s age. 20 C.F.R. § 416.920(g). There are three age

categories under the current regulation: (1) “younger,” or under age 50,

id. § 416.963(c); (2) “closely approaching advanced age,” or between ages

50 and 54, id. § 416.963(d); and (8) “advanced age,” or age 55 or older.

Id. § 416.963(e). These three categories are not applied mechanically.

See, e.g., id. §§ 416.963(c), (e). Rather, if the claimant is “within a few

days to a few months of reaching an older age category” and the

difference between the two age categories is material to determining the

claimant’s disability status, the ALJ must “consider whether to use the

older age category after evaluating the overall impact of all the factors

of [the] case.” Id. § 416.963(b).

The failure to analyze whether a borderline applicant should fall

into an older age category is a reversible error of law. Lucas v.

Wm

Barnhart, 184 F. App’x 204, 206-08 (8d Cir. 2006). First, however, the

applicant must qualify as a borderline situation to trigger the ALJ’s

consideration of whether an older age category is appropriate. 20 C.F.R.

§ 416.963(b) (Tf you are within a few days to a few months of reaching

an older age category ... we will consider whether to use the older age

category ....”) (emphasis added). As Thomas fails to meet that

prerequisite threshold, ALJ Wolfe was not obligated to conduct a

borderline situation evaluation.

While the regulatory framework lacks a definition on what the

phrase “a few days to a few months” means, other sources establish that

the period does not exceed six months. For one thing, the ordinary

meaning of the word “few” is “a small number.” See, e.g., Few,

MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com (last

visited July 24, 2025). In accordance with the plain definition, the SSA

added a guideline on March 25, 2016, providing that “[t]he word ‘few’

should be defined using its ordinary meaning, e.g., a small number.”

HA 01220.042 Borderline Age, PROGRAM OPERATIONS MANUAL SYSTEM

(POMS), https://secure.ssa.gov/apps10/poms.nsf/Inx/2501220042 (last

visited July 24, 2025). Indeed, the SSA “considers [‘Ja few days to a few

17]

months|’] to mean a period not to exceed six months.” Id. (emphasis

added). As is relevant here, the “few days to a few months” is evaluated

based on the period following the date of the ALJ’s decision, 1e., the

_ “date of adjudication and the date the claimant attains age 55. 2 Id.

Thus, the 8% months between ALJ Wolfe’s decision and Thomas’s

55th birthday exceeds the six-month guideline set by the SSA and the

plain meaning of the phrase “a few months.” The Court of Appeals has

endorsed an even more conservative interpretation, affirming an ALJ’s

classification of an application as “younger” even when an applicant

was less than six months from her 50th birthday. Roberts v. Barnhart,

139 F. App’x 418, 420 (8d Cir. 2005) (“Nor is there any authority

extending the benefits of a ‘borderline’ age determination to persons

like Roberts who are within five (5) to six (6) months of their fiftieth

birthday.”)

Further, as the Commissioner correctly notes, Doc. 19 at 12, 15—

17, at least six other Courts of Appeals—including the Fourth, Fifth,

Sixth, Eighth, Ninth, and Tenth—have rejected arguments similar to

those advanced by Thomas here. See, e.g., Ard v. O'Malley, 110 F.4th

613, 615, 617-21 (4th Cir. 2024) (six months and 17 days); Fontenot v.

19

Colvin, 661 F. App’x 274, 277 n.1 (5th Cir. 2016) (per curiam) (over 11

months); Henry v. Comm’ of Soc. Sec’y, 678 F. App’x 392, 394—95 (6th

Cir. 2017) (per curiam) (over six months); Byes v. Astrue, 687 F.3d 918,

918 (8th Cir. 2012) (eight months); Russell v. Bowen, 856 F.2d 81, 84.

(9th Cir. 1988) (seven months); Lambert v. Chater, 96 F.3d 469, 470

(10th Cir. 1996) (same).

Thomas seeks to leverage several decisions from other district

courts in the Third Circuit that found periods of up to ten months from

the next age category threshold sufficient to warrant borderline

situation consideration. Doc. 15 at 7-8 (citing Rosado v. Bowen, 1986

WL 15004, at *4 (E.D. Pa. 1986); Isttk v. Atrue, 2009 WL 382508, at *4

(W.D. Pa. 2009); Williams v. Bowen, 1987 WL 9148, at *2 (E.D. Pa.

1987); Rodriguez v. Astrue, 2014 WL 817878, at *3 (E.D. Pa. 2014);

Bennett v. Sullivan, 1990 WL 122912, at *5 (E.D. Pa. 1990)). All of

those decisions, however, were issued before the SSA’s 2016 guidance

that set six months as the approximate ceiling for “a few months.” HA

01220.042 Borderline Age, PROGRAM OPERATIONS MANUAL SYSTEM

(POMS), https://secure.ssa.gov/apps10/poms.nsf/Inx/2501220042 (ast

visited July 24, 2025). “Since this internal guidance to adjudicators

72

became effective, courts nationally have been more willing to accept six

months as the outer limit on proximity to the next age category, and to

require consideration when a claimant age is within that range.”

Schneider v. Comm’ of Soc. Sec., 2022 WL 3280109, at *4 (E.D. Pa.

2022) (emphasis in original).

ALJ Wolfe set forth Thomas’s chronological age, and noted that

she was between ages 52 and 54 during the pendency her disability .

claim. Tr. 29. The ALJ thus acted well within her discretion when

deeming Thomas “an individual closely approaching advanced age” at

the time of the decision, without deigning to conduct any borderline

situation analysis. Id. As Thomas failed to establish a reversible legal

error and the ALJ set forth the evidence leading to her conclusion, the

undersigned recommends that the Court affirm the administrative

decision.

IV. Recommendation

For the forgoing reasons, it is RECOMMENDED that the District

Court AFFIRM the Commissioner’s decision, DIRECT that judgment

be entered in the Commissioner’s favor, and INSTRUCT the Clerk to

14

close this case. The parties are further placed on notice that, pursuant

to Local Rule 72.3:

Any party may object to a magistrate judge's proposed

findings, recommendations or report addressing a motion or

matter described in 28 U.S.C. § 636 (b)(1)(B) or making a

recommendation for the disposition of a prisoner case or a

habeas corpus petition within fourteen (14) days after being

served with a copy thereof. Such party shall file with the clerk

of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the

portions of the proposed findings, recommendations or report

to which objection is made and the basis for such objections.

The briefing requirements set forth in Local Rule 72.2 shall

apply. A judge shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made and may accept,

reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge,

however, need conduct a new hearing only in his or her

discretion or where required by law, and may consider the

record developed before the magistrate judge, making his or

her own determination on the basis of that record. The judge

may also receive further evidence, recall witnesses or

recommit the matter to the magistrate judge with

instructions.

M.D. Pa. L.R. 72.8. The failure to file timely objections to the foregoing

Report and Recommendation may constitute a waiver of any appellate

rights. See Nara v. Frank, 488 F.3d 187, 194 (8d Cir. 2007).

15

Date: July 30, 2025 S/ Phillip J. Caraballo

Phillip J. Caraballo

United States Magistrate Judge

1€