# Thomas v. Commissioner of Social Security

> District Court, M.D. Pennsylvania · July 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11130411

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11130411. Public record. Not legal advice.