Shumway

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

Joseph &.,

Plaintiff,

Vv. 5:24-CV-1228

(MJK)

Commissioner of Social Security

Defendant.

Howard D. Olinsky Esq., for Plaintiff

Kristina D. Cohn Esgq., Special Asst. U.S. Attorney, for Defendant

Mitchell J. Katz, U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Joseph 8S. brought this action under the Social Security Act (42

U.S.C. § 405(g)) seeking judicial review of the Social Security

Commissioner’s final decision denying her application for benefits. (Dkt.

1.). Joseph S. consented to the jurisdiction of a Magistrate Judge. (Dkt.

5). Both parties filed briefs (Dkts. 11, 12, 13) which the Court treats as

motions under Fed. R. Civ. P. 12(c), in accordance with General Order

18.

I. PROCEDURAL HISTORY

The Court assumes the parties’ familiarity with the procedural

history of this case and will incorporate it by reference, if necessary,

in its analysis.

II. GENERALLY APPLICABLE LAW

A. Disability Standards

To be considered disabled, a claimant seeking DIB or SSI benefits

must establish that they are “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. § 1382c(a)(8)(A). Additionally, the

claimant’s

physical or mental impairment or impairments [must be] of

such severity that they are not only unable to do their

previous work but cannot, considering their age, education,

and work experience, engage in any other kind of substantial

gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which

they live, or whether a specific job vacancy exists for them, or

whether they would be hired if they applied for work.

42 U.S.C. § 1382c(a)(8)(B) (cleaned up).

The Commissioner uses a five-step process, set forth in 20 C.F.R.

§§ 404.1520 (for DIB) and 416.920 (for SSI), to evaluate disability

claims:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity. If [they are]

not, the [Commissioner] next considers whether the claimant

has a “severe impairment” which significantly limits [their]

physical or mental ability to do basic work activities. If the

claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has

an impairment which meets or equals the criteria of an

impairment listed in Appendix 1 of the regulations. If the

claimant has such an impairment, the [Commissioner] will

consider [them] disabled without considering vocational

factors such as age, education, and work experience... .

Assuming the claimant does not have a listed impairment, the

fourth inquiry is whether, despite the claimant’s severe

impairment, [they have] the residual functional capacity to

perform [their] past work. Finally, if the claimant is unable to

perform [their] past work, the [Commissioner] then

determines whether there is other work which the claimant

can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see

also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry,

675 F.2d at 467). The claimant has the burden of establishing disability

at the first four steps. See Berry, 675 F.2d at 467. If the claimant

establishes that their impairment prevents them from performing their

past work, then the burden shifts to the Commissioner to prove the fifth

and final step. Id.

B. Scope of Review

When reviewing a final decision of the Commissioner, courts must

determine whether the correct legal standards were applied and

whether substantial evidence supported the decision. Id. at 417; see also

Brault v. Soc. Sec. Admin., Comm, 683 F.3d 448, 448 (2d Cir. 2012); 42

U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a

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

Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be “more

than a scintilla’” of evidence scattered throughout the administrative

record. Jd. Yet this standard is a very deferential standard of review “—

even more so than the ‘clearly erroneous standard.” Brault, 683 F.3d at

448. “To determine on appeal whether an ALJ’s findings are supported

by substantial evidence, reviewing courts consider the whole record,

examining the evidence from both sides, because an analysis of the

substantiality of the evidence must also include that which detracts

from its weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258

(2d Cir. 1988). But reviewing courts may not substitute their

interpretation of the administrative record for that of the Commissioner

if the record contains substantial support for the ALJ’s decision. Id.; see

also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

ALJs need not explicitly analyze every piece of conflicting

evidence in the record. See Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d

Cir. 1983); see also Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)

(“[W]e are unwilling to require an ALJ explicitly to reconcile every

conflicting shred of medical testimony[.]”). But ALJs cannot “pick and

choose’ evidence in the record that supports [their] conclusions.” Cruz v.

Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); see also Fuller v.

Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6,

2010).

Il. FACTS

The record includes Joseph S.’s medical records which the parties

are familiar with. The Court will refer to the pertinent records and the

hearing testimony in its analysis of the parties’ claims as appropriate.

IV. THE ALJ’S DECISION

At step one of the five-step-sequential analysis, ALJ Hoffman

determined that Joseph S. has “not engaged in substantial gainful

activity from September 26, 2019, the amended alleged onset date.” (T.

1086).

At step two, ALJ Hoffman concluded that Joseph S. had the

following severe impairments: stage 2 non-Hodgkin lymphoma (in

remission), type II diabetes mellitus, and diabetic neuropathy. (/d.).

At step three, ALJ Hoffman determined that Joseph S. “does not

have an impairment, or combination of impairments, that meets or

medically equals the severity of one of the listed impairments in 20

C.F.R Part 404, Subpart. P, Appendix. 1.” (T. 1090) Gnternal citations

omitted).

After this, ALJ Hoffman determined that Joseph S. had the

residual functional capacity (“RFC”) to perform:

the exertional demands of light work as defined in 20 CFR

404.1567(b) and 416.967(b) with additional non-exertional

limitations. Specifically, the claimant can occasionally lift and

carry twenty pounds; can frequently lift and carry ten pounds; can

sit for six hours and stand and/or walk for six hours, all in an

eight-hour workday with normal breaks; can occasionally climb

ramps or stairs; and can occasionally climb ladders, ropes, or

scaffolds; can perform occasional stooping, kneeling, crouching,

and crawling; and can perform occasional balancing as that term

is defined in the Dictionary of Occupational Titles (DOT) / Selected

Characteristics of Occupations (SCO)

(T. 1091).

To make this finding, ALJ Hoffman considered “all symptoms and

the extent to which these symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence,

based on the requirements of 20 CFR 404.1529 and 416.929 and SSR

16-3p” and “the medical opinion(s) and prior administrative medical

finding(s) in accordance with the requirements of 20 CFR 404.1520c

and 416.920c.” (T. 1092).

At step four, ALJ Hoffman declined to make a finding as to

whether Joseph S. can perform any relevant past work because she

elected to utilize the expedited process under 20 C.F.R. § 404.1520(b).

(T. 1102).

Finally, at step five, ALJ Hoffman concluded that “considering”

Joseph S.’s “age, education, work experience, and residual functional

capacity, without consideration of his work experience, there are jobs

that exist in significant numbers in the national economy [Joseph S.]

can perform.” (T. 1104). Accordingly, ALJ Hoffman determined that

Joseph S. is not disabled as defined by the Social Security Act. (T.

1105).

V. ISSUES IN CONTENTION

Joseph S. argues: (1) ALJ Hoffman failed to perform the

supportability and consistency analyses on Patrick Carguello, D.O.’s

opinion; (2) because his non-exertional impairments have more than

“very little effect” on the occupational base of light work, ALJ Hoffman’s

decision not to consult a vocational expert constitutes “harmful” error;

and (3) ALJ Hoffman’s decision failed to follow the agency’s borderline

age policy, as set forth in 20 C.F.R. §§ 404.1563, 416.963 and explained

in the POMS at DI 25015.066. (Pl. Br., pgs. 13-30).

The Commissioner, on the other hand, argues: (1) ALJ Hoffman

properly considered the medical opinions of record; (2) substantial

evidence supports ALJ Hoffman’s decision; and (3) ALJ Hoffman

properly considered Joseph S.’s borderline age at step five (Def. Brief,

pgs. 7-18).

VI. DISCUSSION

The Court affirms ALJ Hoffman’s decision. First, ALJ Hoffman

performed the supportability and consistency analyses on Dr.

Carguello’s opinion. Second, ALJ Hoffman’s decision not to consult a

vocational expert is not reversible error. Finally, ALJ Hoffman analyzed

the agency’s borderline age policy and properly exercised his discretion

to utilize Joseph S.’s chronological age.

A. ALJ Hoffman properly evaluated Dr. Carguello’s

medical opinion.

ALJ Hoffman properly performed the supportability and consistency

analysis of Dr. Carguello’s opinion. The Court therefore affirms ALJ

Hoffman’s decision.

ALJs “must consider all medical opinions and evaluate their

persuasiveness based on their supportability and consistency, the

author’s relationship with the claimant and specialization, and other

factors.” Tyler W. v. Comm’ of Soc. Sec., No. 22-CV-01345 (CFH), 2024

WL 1075209, at *7 (N.D.N.Y. Mar. 12, 2024) (cleaned up). “The two most

important factors for determining the persuasiveness of medical

opinions are consistency and supportability[.]” Stephanie F. v. Kijakazi,

No. 20-CV-1528 (BKS), 2022 WL 3355964, at *9 (N.D.N.Y. Aug. 15,

2022). Because that’s so, ALJs must “explain how [they] considered the

supportability and consistency factors” for a medical opinion. 20 C.F.R.

§§ 404.1520c(b)(2), 416.920c(b)(2).

“Supportability” means that “the more relevant the objective

medical evidence and supporting explanations presented by a medical

source are to support his or her medical opinion(s) or prior

administrative medical finding(s), the more persuasive the medical

opinions or prior administrative medical finding(s) will be.” Id. §§

404.1520c(c)(1), 416.920c(c)(1) (cleaned up). “Consistency” means that

“the more consistent a medical opinion(s) or prior administrative

medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical

opinion(s) or prior administrative medical finding(s) will be.” Id. §§

404.1520c(c)(2), 416.920c(c)(2). In plain English, supportability is an

internal check—examining whether the medical source references

medical evidence that comes from the medical source—while

consistency is an external check—examining whether the medical

sources’ opinion is similar, or dissimilar, to the opinions of other

medical and non-medical sources.

An ALJ’s “failure to explain the supportability and consistency of

the medical opinions in the record is procedural error.” Stephanie F.,

2022 WL 3355964, at *9. And procedural errors, including an ALJ’s

failure to comply with the articulation requirement, are subject to

harmless error review. See id; see also Loucks v. Kijakazi, No. 21-CV-

10

1749, 2022 WL 2189298, at *2 (2d. Cir. 2022) (summary order)

(applying harmless error review to a procedural error).

Dr. Carguello opined that Joseph S. can: (1) stand/walk for less

than two hours and sit for at least six hours in an eight-hour workday;

(2) occasionally lift and carry less than ten pounds; frequently twist;

occasionally stoop/bend; rarely crouch, squat, and climb stairs; and

never climb ladders; (3) frequently look down, turn his head right or

left, look up, and hold his head in a static position. (Tr. 1652). Dr.

Carguello further opined that Joseph S. can frequently grasp, turn,

twists objects, perform fine manipulations, and reach overhead. (Tr.

1653). He indicated that Joseph S. would need to take unscheduled

breaks during the eight-hour workday, would be off task more than 20

percent of the workday, and would be absent from work more than four

days per month. (Tr. 16538).

Joseph 8. argues that the “ALJ’s decision is erroneous because it

does not adequately explain how the factors of supportability and

consistency led the ALJ to find the disabling portion of the opinions of

Dr. Carguello to be unpersuasive.” (Pl. Br., pg. 14). Joseph S.’s

argument is unavailing. ALJ Hoffman supportably concluded that Dr.

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Carguello’s opined limitations were not supported by Joseph S.’s

unremarkable musculoskeletal and neurological physical examination

findings. Neurologically, Dr. Carguello’s treatment notes indicate that

Joseph S. was oriented to time, place, and person. (T. 579, 581, 598,

605, 611, 881, 1686, 1699, 1738). Dr. Carguello’s notes that Joseph S.’s

musculoskeletal system is “normal.” (Ud.). Dr. Cargeullo’s medical

records are devoid of any objective medical findings supportive of

Joseph S8.’s position.

The ALJ also correctly concluded that Dr. Carguello’s opinion

regarding the side effects of Joseph S.’s medications were not well

supported. (T. 1101). At a December 7, 2023 encounter, Joseph S.

reported no feelings of lightheadedness or falls despite Dr. Carguello’s

opinion to the contrary. (T. 1735). And although on September 26, 2023

Joseph S. reported side effects from Ozempic (T. 1679), he reported “no

complaints” and “no nausea [or] vomiting” during an October 30, 2023

encounter after his medication was switched to Mounjaro (T. 1741).

Beyond that, there are no other side effects from Joseph S.’s

medications noted in Dr. Carguello’s treatment notes that Joseph S.

required treatment for.

12

ALJ Hoffman also supportably concluded that Dr. Cargeullo’s

analysis of Josph S.’s need for unscheduled breaks, absenteeism and

time off task was not well supported. Dr. Carguello’s opinions regarding

Joseph S.’s limitations are reported in a check-box form. (T. 1653).

While true that a medical opinion cannot “be discounted . . . based on

the naked fact that it was provided in a check-box form,” Colgan v.

Kijakazi, 22 F.4th 3538, 361 (2d Cir. 2021), it may be discounted if it is

not “supported by substantial evidence.” Schillo v. Saul, 31 F.4t6 64, 77

(2d Cir. 2022); see also Halloran v. Barnhart, 362 F.3d 28, 31 n.2 (2d

Cir. 2004) (stating that a standardized form without accompanying

explanation is “only marginally useful for purposes of creating a

meaningful and reviewable factual record’). Here, ALJ Hoffman found

Dr. Cargeullo’s opinion unsupported by “clinical or diagnostic findings

or narrative explanation for the limits provided to further support the

degree of absenteeism and off-task behavior identified.” (T. 1102); see

also see also Robert O. v. Comm’ of Soc. Sec., No. 3:20-CV-1612 (TWD),

2022 WL 593554, at *13 (N.D.N.Y. Feb. 28, 2022) (holding that the ALJ

did not err in concluding medical opinions on check-box forms lacked

13

supporting explanations “or references to specific clinical or diagnostic

findings to support the proposed limitations.”) (cleaned up).

In addition to her supportability analysis, ALJ Hoffman also

properly concluded that Dr. Carguello’s opined limitations were

inconsistent with the limitations identified by the State Agency

consultants and Dr. Lorensen, the consultative examiner. ALJs are

entitled to rely on opinions from both examining and non-examining

State agency medical consultants because these consultants are

qualified experts in the field of Social Security disability. See Frye ex rel.

A.O. v. Astrue, 485 F. App’x 484, 487 (2d Cir. 2012) (Summary order)

(explaining that “[t]he report of a State agency medical consultant

constitutes expert opinion evidence which can be given weight if

supported by medical evidence in the record.”); see also Trepanier v.

Comm? of Soc. Sec. Admin., 752 F. App’x 75, 78 (2d Cir. 2018)

(substantial evidence supported ALJ’s RFC finding; ALJ “largely relied

on the report of a consultative examiner”); Petrie v. Astrue, 412 F. App’x

401, 405 (2d Cir. 2011) (“The report of a consultative physician may

constitute such substantial evidence.”).

14

In contrast to Dr. Carguello’s opinion, State Agency consultants

Drs. Randall and Abueg opined that Joseph S. can: (1) occasionally lift

and/or carry 20 pounds; (2) frequently lift and/or carry ten pounds; (3)

stand and/or walk about six hours in an eight-hour workday; and (4) sit

about six hours in an eight-hour workday. (Tr. 75, 101-02). Drs. Randall

and Abueg also opined that Joseph 8. had: (1) only occasional

limitations for climbing and balancing; and (2) no limitations for

stooping, kneeling, crouching, and crawling. (Tr. 75-76, 102-03). State

agency medical consultants Drs. Naroditsky and Periakaruppan opined

that Joseph S. can: (1) occasionally lift and/or carry 20 pounds;

(2) frequently lift and/or carry ten pounds; (3) stand and/or walk about

six hours in an eight-hour workday; and (4) sit about six hours in an

eight-hour workday. (Tr. 1197, 1208). Drs. Naroditsky and

Periakaruppan also found that Plaintiff had only occasional postural

limitations. (Tr. 1197-98, 1208).

Dr. Carguello’s medical source statement is also inconsistent with

the findings of consultative examiner Dr. Lorensen who examined

Joseph S. on three separate occasions. (Tr. 868, 905, 1622). Dr.

Lorensen opined that Joseph S. had no physical limitations for sitting,

15

standing, and walking and only moderate limitations for climbing. (Tr.

868, 905, 1622). ALJ Hoffman supportably concluded that Dr.

Lorensen’s opinion that Joseph S. had no limitations siting, standing,

walking, and only moderate limitations for climbing was inconsistent

with Dr. Carguello’s extreme limitations and more persuasive than Dr.

Carguello’s opinion because it was supported by Dr. Lorensen’s own

findings that Joseph S. had a normal gait, can walk on his heels and

toes, could squat fully, required no assistive devices and required no

help getting on and off the examination table. (Tr. 866, 903). Dr.

Lorensen also reported in a March 18, 2021 examination that although

Joseph S. had a small decrease in lumbar spine range of motion and

diminished sensation to pinprick in the ankles, he had full range of

motion of the cervical spine, a negative straight leg raising test

bilaterally, and full range of motion and full strength of the upper and

lower extremities. (Tr. 867). In June 2021, Dr. Lorensen further

reported that Joseph S. had full lumbar range of motion and normal

sensation throughout the extremities (Tr. 904) and in December 2022,

he reported a normal gait, no ulcers in the lower extremities, and full

strength and range of motion of the extremities. (Tr. 1621). Dr.

16

Lorensen’s opinion was also consistent with the normal neurological

and musculoskeletal findings of record. (Tr. 579, 581, 593, 605, 611,

881, 887, 1055-56, 1063, 1100, 1678).

In addition to his opined limitations, Dr. Carguellos’ report that

Joseph 8. suffered side effects from medications is inconsistent with

Joseph S.’s self-reporting on disability forms and to doctors that he had

no such side effects. (Tr. 309, 320, 322, 331, 345, 1021, 1498, 1608).

Similarly, Dr. Carguello’s report of Joseph S.’s subjective complaints of

severe foot pain and “nerve zaps” from the ankles to the feet is

inconsistent with generally good neurological and musculoskeletal

findings (Tr. 579, 581, 593, 605, 611, 881, 887, 1055-56, 1063, 1100,

1678) and occasional decreased sensation in both feet is inconsistent

with otherwise normal neurological findings, no ulcers on his feet, anda

normal gait (Tr. 386, 400, 409, 412, 418, 623, 629, 634, 682, 689, 1069,

1664).

eek

The Court finds that the ALJ Hoffman properly evaluated the

supportability and consistency factors of Dr. Carguello’s medical

opinion. Although Joseph S. disagrees with ALJ Hoffman’s analysis, the

17

question is not whether substantial evidence supports Joseph S8.’s views;

“rather, [the Court] must decide whether substantial evidence supports

the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d

Cir. 2013). Joseph S.’s disagreement is not a basis for remand. See

Wilson o/b/o J.J.W. v. Comm’ of Soc. Sec., No. 1:19-CV-737-DB, 2020

WL 3447800, at *5 (W.D.N.Y. June 24, 2020) (“[M]Jere disagreement

with the ALJ's findings does not warrant remand.”). And so, the Court

declines to disturb ALJ Hoffman’s evaluation of Dr. Carguello’s opinion.

B. Substantial Evidence Supports ALJ Hoffman’s Sep Five

Finding

The Court finds that substantial evidence supports ALJ Hoffman’s

determination at step five of the sequential evaluation. Because Joseph

S.’s non-exertional limitations did not significantly limit the range of

work permitted by his exertional limitations, ALJ Hoffman supportably

relied on the Medical-Vocational Guidelines and not the testimony of a

vocational expert. For this reason, the Court declines to reverse ALJ

Hoffman’s step five finding.

The burden shifts to the Commissioner at Step Five “to show there

is other work that [the claimant] can perform.” McIntyre v. Colvin, 758

F.3d 146, 150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683

18

F.3d 448, 445 (2d Cir. 2012)). “If a claimant has non-exertional

limitations that ‘significantly limit the range of work permitted by his

exertional limitations,’ the ALJ is required to consult with a vocational

expert.” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting

Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)). “However, the ‘mere

existence of a non-exertional impairment does not automatically...

preclude reliance on the [Medical-Vocational] guidelines.” Zabala, 595

F.3d at 410-11 (quoting Bapp, 802 F.2d at 603). “A non-exertional

impairment ‘significantly limits a claimant’s range of work when it

causes an additional loss of work capacity beyond a negligible one or, in

other words, one that so narrows a claimant’s possible range of work as

to deprive him of a meaningful employment opportunity.” Zabala, 595

F.3d at 410-11 (quoting Bapp, 802 F.2d at 605-06).

Here, Joseph S. maintains that ALJ Hoffman erred in failing to

procure vocational expert testimony because his non-exertional

impairments have “more than ‘very little effect’ on the occupational base

of light work.” (Pl. Br., pg. 22) (quoting SSR § 83-14) (emphasis in

original). The Court disagrees.

19

After fashioning the RFC, ALJ Hoffman declined to make a

finding under 20 C.F.R. 404.1520(h) whether Joseph S. could perform

past relevant work. (T. 1102). ALJ Hoffman then found that Joseph 8.

could perform other jobs existing in significant numbers in the national

economy based on the RFC for the full range of light work as defined in

20 C.F.R. 404.1567(b) and 416.967(b) with additional non-exertional

limitations. (T. 1091.)

First, as determined above, ALJ Hoffman’s RFC findings were

supported by substantial evidence and based upon correct legal

principles. The Court therefore finds Joseph 8.’s argument that ALJ

Hoffman failed to consider his non-exertional limitations to be without

merit. ALJ Hoffman found that the impact of Joseph S.’s postural

restrictions had “little or no” effect on the light occupational base. See

(T. 1104); see also SSR 83-14 (limitations in climbing, balancing,

kneeling, and crawling would not have significant impact to perform

most light jobs); see also Walton v. Commr of Soc. Sec., 18-CV-6140,

2020 WL 3964255, at *8-9 (W.D.N.Y. July 13, 2020) (finding no error in

relying on the Grids where ALJ limited the plaintiff to light work with

occasional stooping, bending, kneeling, crouching, crawling, and

20

climbing ramps and stairs, and no climbing ladders, ropes, and

scaffolds); Katherine Marie S. v. Comm’ of Soc. Sec., 18-CV-0233, 2019

WL 1427456, at *11 (N.D.N.Y. Mar. 29, 2019) (Dancks, M.J.) (finding no

error in the ALJ’s reliance on the Grids where RFC limited plaintiff to

light work with only occasional climbing, balancing, stooping, kneeling,

crouching, and crawling).

Finally, Joseph S.’s attempt to circumvent ALJ Hoffman’s step

five determination by alleging that she impermissibly used the phrase

“little or no effect” rather than “very little” (as used in SSR 83-14) effect

in describing the extent of Joseph S.’s non-exertional limitations on the

occupational base of light work is a red herring. (PI. Br., pg. 17).

Although ALJ Hoffman did not use the precise language set forth in

SSR 83-14, she supportably concluded that Joseph S.’s postural

limitations had a de minimis effect on the occupational job base and

certainly did not rise to the level of restrictions that warranted the need

for vocational expert testimony. See (T. 1105); see also Ramos o/b/o

N.S. v. Saul, No. 18-CV-0940L, 2020 WL 1285958, at *2 (W.D.N.Y. Mar.

18, 2020) (holding the ALJ’s use of clumsy verbiage in two sentences out

of a 19-page opinion had not deprived the court of meaningful review);

21

see also Denhert v. Astrue, No. 07-CV-897 (GLS/VEB), 2009 U.S. Dist.

LEXIS 75287, at *12 (N.D.N.Y. Aug. 3, 2009) (despite the ALJ’s use of

“clumsy” language, “the ALJs ultimate conclusion that Plaintiff was not

disabled as of the date of his application was supported by substantial

evidence ...”). Specifically, ALJ Hoffman thoroughly discussed how

Joseph S8.’s postural limitations did not significantly impact his ability

to perform light work. (Tr. 1104-05) and the record evidence

demonstrates that Joseph S. could squat fully and walk on heels and

toes without difficulty (Tr. 866, 903, 1620.).

Finally, Joseph S.’s reliance on Lisa G. v. Comm’ of Soc. Sec., No.

5:22-CV-552 (DJS), 2023 WL 4175295 (N.D.N.Y. June 26, 2023) in

support of his argument that ALJ Hoffman should have elicited the

testimony of a vocational expert is misplaced. In Lisa G., plaintiff

presented with postural, manipulative, and environmental limitations

which the Court held was error for the ALJ not “to have considered

what combined impact, if any, they would have had on Plaintiff's

vocational opportunities.” Id. at *4. Here, however, Joseph S. only has

postural limitations.

22

In sum, ALJ Hoffman supportably relied on the Medical-

Vocational Guidelines rather than relying on the testimony of a

vocational expert. The Court declines to reverse ALJ’s Hoffman’s

decision on this basis.

C. ALJ Hoffman properly considered Joseph S.’s

borderline age.

ALJ Hoffman supportably concluded that Joseph S.’s chronological

age rather than the higher age category of persons of advanced age was

more appropriate in determining whether Joseph S. was disabled.

“The regulations direct that the age category that applies toa

plaintiff during the period for which [he or] she claims disability be used

to determine whether or not [the] plaintiff is disabled.” Jeanette J. v.

Saul, No. 6:19-CV-0795 (ML), 2020 WL 4932047, at *6 (N.D.N.Y. Aug.

24, 2020). “The Grids contain three age categories: ‘younger person’

(under age 50); ‘person closely approaching advanced age’ (age 50-54);

and ‘person of advanced age’ (age 55 or older).” Kathy H. v. Comm’ of

Soc. Sec., No. 5:19-CV-684 (ATB), 2020 WL 3960846, at *12 (N.D.N.Y.

July 13, 2020) (quoting 20 C.F.R. § 404.1563(c)-(e)). “If [a plaintiff is]

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

23

decision that you are disabled, [the ALJ] will consider whether to use

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

factors of [the] case.” 20 C.F.R. §§ 404.1563(b), 416.963(b). “[T]he age

categories are not to be applied mechanically in a borderline situation,

such as where a claimant is within a few days or months of obtaining an

older age category and using the older age category would result in a

determination or decision that [the plaintiff] [is] disabled.” Waldvogel v.

CommY of Soc. Sec., No. 6:16-CV-0868 (GTS), 2017 WL 3995590, at *11

(N.D.N.Y. Sept. 11, 2017) (citations and quotation marks omitted). “In

evaluating whether to apply the older age category, the Agency

considers ‘the overall impact of all the factors in [the] case.” Id. (quoting

20 C.F.R. §§ 404.1563(b), 416.963(b)). The failure to consider the

borderline age situation and determine whether the higher age category

should be applied is error that can warrant remand. See Waldvogel v.

Commissioner of Social Security, No. 6-CV-0868, 2017 WL 3995590, at

*12 (N.D.N.Y. Sept. 11, 2017).

To determine whether a borderline age situation exists, “ALJs will

assess whether the claimant reaches or will reach the next higher age

category within a few days to a few months after[,]” in relevant part, the

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date of last insured or date of adjudication. HALLEX I-2-2-42,

Borderline Age, 2016 WL 1167001, at *1. Then, if the plaintiff is “within

a few days to a few months” of the older age category, the question is

whether “using the higher age category [would] affect the outcome of

the decision[.]” Jd. “[I]f using the higher age category does not affect the

outcome of the decision, a borderline age situation does not exist....

However, if the plaintiff is within a few days or months of the higher

category “and using the higher age category does affect the outcome of

the decision, a borderline age situation does exist[.]” Id.

Joseph 8. argues that ALJ Hoffman’s analysis of whether to

utilize the higher age category in determining whether he was disabled

was “flawed for several reasons.” (Pl. Br., pg. 29). First, Joseph S.

complains that ALJ Hoffman focuses on whether there is a

“progressively more adverse impact on his ability to adjust to other

work.” (Pl. Br., pg. 29) (quoting T. 1104). Second, Joseph S. argues that

“while it is true that Plaintiff is more than ‘a few days’ from the date he

will attain age 55, the ALJ incorrectly depicts the pertinent time frame

as being ‘a few months’ from turning 55, when it is actually only 53

days.” Ud.) (quoting T. 1106). Third, Joseph S. maintains that ALJ

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Hoffman incorrectly states that the factors related to Joseph S.’s

education “do not negatively affect or have a more adverse impact in the

case.” (d.) (quoting T. 1104). Fourth, ALJ Hoffman “improperly

considered work experience which was done outside the period relevant

to the claim. (/d.) (citing T. 1104). Finally, Joseph S. maintains that

ALJ Hoffman “completely ignored the instructions in the [Programs

Operation Manual System] which require consideration of the extent to

which the occupational base is adversely affected by the RFC itself.”

(Id.).

In opposition, Defendant asserts that Joseph S. failed to sustain

his burden of “demonstrating progressively additional vocational

adversities supporting the use of the next higher age category.” (Def.

Bri., pg. 18). The Court finds Joseph S.’s argument to be without merit.

Here, ALJ Hoffman explained that Joseph S. “attained age 50 on

September 26, 2019 [the amended alleged onset date], one day prior to

his actual birthday’ and that Joseph S. “will attain a higher age

category of an individual of advanced age (age 55 or older in

approximately 2-3 months from the date of this decision.” (T. 1103). ALJ

Hoffman noted that Joseph S. does not have a limited or marginal

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education, that Joseph S.’s work was not performed in an isolated

industry, and that Joseph S. had earnings above the substantial gainful

activity level for many years. (T. 1104). Notably, ALJ Hoffman also

found that Joseph S.’s “exertional and non-exertional limitations [were]

already considered in conjunction with the Social Security rulings in

determining that the Medical-Vocational Rules at the light exertional

level would be more appropriate as a framework for the decision.” (T.

1104).

Although Joseph S. disagrees with the ALJ Hoffman’s decision not

to categorize him as a person of advanced age, the ultimate

determination on whether a claimant’s borderline age or chronological

age should apply is within the ALJ’s discretion. See Torres v. Commy of

Soc. Sec., No. 18-CV-460, 2015 WL 544888 at *9(W.D.N.Y. Jul. 16,

2019). Moreover, where evidence is susceptible to more than one

rational interpretation, the Commissioner’s decision must be upheld.

See Rutherford v. Schwetker, 685 F. 2d 60, 62 (2d Cir. 1982).

Accordingly, the Court finds that ALJ Hoffman’s age designation was

not erroneous and is supported by substantial evidence. See Martinez v.

Comm of Soc. Sec., No. 17-CV-8949, 2019 WL1254842 at *27 (S.D.N.Y.

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Mar. 19, 2019) (holding remand unwarranted where the ALJ

acknowledged the claimant’s borderline age (less than one month from

turning 55) and considered non-mechanical application of the categories

in determining it was appropriate to use the claimant’s chronological

age of 54).

VII. CONCLUSION

WHEREFORE, based on the findings above, it 1s

ORDERED, that Joseph S.’s motion for judgment on the

pleadings (Dkts. 11, 13 ) is DENIED, and it is further

ORDERED, that Defendant’s motion for judgment on the

pleadings (Dkt. 12) is GRANTED, and it is further

ORDERED, that the decision of the Commissioner is

AFFIRMED and Joseph S.’s Complaint is DISMISSED IN ITS

ENTIRETY.

Digitally signed by

. Mitchell J Kat

Dated: March 19, 2026 Mwtetel > Fee Date: 2026.03.19

13:33:59 -04'00'

Hon. Mitchell J. Katz

U.S. Magistrate Judge

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