1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 L.D., Case No. 20-cv-06906-VKD

9 Plaintiff, ORDER DENYING MOTION TO 10 v. ALTER OR AMEND JUDGMENT

11 KILOLO KIJAKAZI, Re: Dkt. No. 24 Defendant. 12

13 14 On March 31, 2022, the Court granted-in-part and denied-in-part each party’s cross-motion 15 for summary judgment. Dkt. No. 22. The Court remanded plaintiff L.D.’s1 case for further 16 proceedings, finding that the ALJ erred in assessing the medical opinions and in considering 17 L.D.’s borderline age situation. See id. Now pending before the Court is defendant Commissioner 18 of Social Security’s (“Commissioner”) motion to alter or amend the Court’s judgment as to its 19 finding regarding L.D.’s borderline age situation, and to remand the case based solely on the 20 assignment of error as to the medical opinions. Dkt. No. 24. L.D. opposes the motion.2 Dkt. 21 No. 25. For the reasons stated below, the Court denies the Commissioner’s motion. 22 23 24 1 Because orders of the Court are more widely available than other filings, and this order contains potentially sensitive medical information, this order refers to the plaintiff only by her initials. See 25 Dkt. No. 1. This order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5- 26 1(c)(5)(B)(i). 27 2 All parties have expressly consented that all proceedings in this matter may be heard and finally 1 I. LEGAL STANDARD 2 “A district court may reconsider its grant of summary judgment under either Federal Rule 3 of Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from 4 judgment).” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc.,

(9th Cir. 5 1993). A district court has considerable discretion when considering a motion to amend a 6 judgment under Rule 59(e). McDowell v. Calderon,

, 1254 n.1 (9th Cir. 1999). 7 “Amending a judgment after its entry remains an extraordinary remedy which should be used 8 sparingly.” Allstate Ins. Co. v. Herron,

(9th Cir. 2011) (internal quotation 9 marks omitted). There are four grounds upon which a Rule 59(e) motion may be granted: (1) the 10 motion is “necessary to correct manifest errors of law or fact upon which the judgment is based;” 11 (2) the moving party presents “newly discovered or previously unavailable evidence;” (3) the 12 motion is necessary to “prevent manifest injustice;” or (4) there is an “intervening change in 13 controlling law.” Turner v. Burlington Northern Santa Fe R.R. Co.,

(9th Cir. 14 2003) (citation omitted). 15 II. DISCUSSION 16 The Commissioner argues that the Court’s order is contrary to the Ninth Circuit’s decision 17 in Lockwood v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2010), interpreting 18

as it applies to “borderline age situations.” Dkt. No. 24 at 1. The 19 Commissioner moves for relief under Rule 59(e) “to correct manifest errors of law or fact upon 20 which the judgment is based.” Id.; Turner,

. L.D. disagrees and argues that 21 nothing in the record shows that the ALJ properly considered L.D.’s borderline age situation. 22 Under the Commissioner’s regulations, age is considered as a vocational factor and is 23 categorized as follows: “younger person” (under age 50); “closely approaching advanced age” 24 (age 50-54); and “advanced age” (age 55 or older).

(c)-(e). A “borderline 25 situation” is presented where the claimant is “within a few days to a few months of reaching an 26 older age category, and using the older age category would result in a determination or decision 27 that [the claimant is] disabled[.]”

§ 404.1563(b). In borderline cases, an ALJ may “not apply 1 evaluating the overall impact of all the factors in [the claimant’s] case.” Id. “It is clear from the 2 text of this regulation that an ALJ is not required to use an older age category, even if the claimant 3 is within a few days or a few months of reaching an older age category.” Lockwood,

1071. Rather, an ALJ has discretion to use the higher age category.

at 1069 (citing 20 C.F.R. 5 § 404.1563(b)); see also Barreras v. Saul,

, 72 (9th Cir. 2020). 6 In Lockwood, the Ninth Circuit held that although an ALJ is required by regulation to 7 consider whether to use a higher age category in a borderline situation, there is no requirement that 8 an ALJ explain in a written decision why a higher age category was not used. Lockwood, 616 9 F.3d at 1070 (citing

(b)); see also

at 1071-72 & n.2, 4. Rather, an ALJ is 10 required by regulation only to consider whether to use the higher age category after evaluating the 11 overall impact of all the factors of the claimant’s case.

;

(b). 12 An ALJ may be found to satisfy this requirement by, for example, (1) mentioning the claimant’s 13 birthdate and age category, (2) citing the regulation that prohibits application of the age categories 14 mechanically in a borderline situation, see

, and (3) evaluating the overall 15 impact of all the factors in the claimant’s case in reliance on the testimony of a VE. Lockwood, 16

; see also Marcia B. v. Comm’r Soc. Sec. Admin., No. 21-cv-05694-TLF, 2022

, at *2 (W.D. Wash. Apr. 4. 2022) (same). 18 In this case, the Court observed that L.D. was within three months of her 50th birthday at 19 the time of the ALJ’s decision. See Dkt. No. 22 at 12. However, as the Court also observed, the 20 record reflects that the ALJ only considered her age (44 years old) as of the date of alleged onset 21 of her disability. See

. Specifically, the ALJ wrote: “The claimant was born on June 9, 22 1970 and was 44 years old, which is defined as a younger individual age 18-44, on the alleged 23 disability onset date (20 CFR 404. 1563).” AR at 25. 24 “A claimant’s age should be considered at the time of the ALJ’s decision.” Little v. 25 Berryhill,

(9th Cir. 2017) (citing Lockwood,

)); Russell 26 v. Bowen,

(9th Cir. 1988). District courts in the Ninth Circuit have repeatedly 27 found that failure to consider a claimant’s age as of the date of an ALJ’s decision is insufficient 1 Saul, No. 1:20-CV-00105-CWD,

, at *8 (D. Idaho June 28, 2021) (“Lockwood 2 requires the ALJ to consider a claimant’s age at the time of the ALJ’s decision. But here, the ALJ 3 stated Petitioner’s age at the time of her application, rather than at the time the ALJ made his 4 decision.”); Janice B.R. v. Saul, No. 2:18-CV-06039-AFM,

, at *3 (C.D. Cal. 5 Aug. 29, 2019) (“[A]lthough the ALJ mentioned Plaintiff’s date of birth, she did not mention 6 Plaintiff’s age as of the date of her decision.”); Strissel v. Colvin, No. C16-0374-RJB-MAT, 2016

, at *3 (W.D. Wash. Oct. 5, 2016), report and recommendation adopted, No. C16- 8 0374-RJB,

(W.D. Wash. Oct. 25, 2016) (“The ALJ’s decision indicates, 9 accurately, that plaintiff was 49, a ‘younger individual,’ on the June 19, 2009 amended alleged 10 disability onset date, but does not mention her age or age category at the time of the July 29, 2014 11 decision, some five years and almost two age categories later.”); Campbell v. Astrue, No. 1:09- 12 CV-00733 GSA,

, at *3-4 (E.D. Cal. Apr. 15, 2011) (“[T]he ALJ improperly 13 referenced Plaintiff’s age at onset of disability rather than at the time of the decision.”); cf. R.W. v. 14 Kijakazi, No. 21-CV-00152-VKD,

, at *4 (N.D. Cal. Aug. 9, 2022) (finding that 15 the ALJ sufficiently considered claimant’s age under Lockwood where ALJ noted claimant’s age 16 as of the date last insured). The Court is not persuaded that it made an error of law or fact in 17 concluding that the ALJ did not consider whether to use the higher age category, as he was 18 required to do. 19 The Commissioner also argues that the Court erred by ordering remand based on a 20 provision of the agency’s operations manual. The Commissioner is incorrect. In its prior order, 21 the Court wrote that “[t]he Commissioner’s argument is also inconsistent with the POMS 22 borderline age policy, which directs an ALJ to ‘[d]ocument how you considered borderline age 23 whether you allow or deny the claim.’” Dkt. No. 22 at 13 (emphasis added). However, the 24 Court’s decision to order remand was not based on the ALJ’s failure to comply with agency 25 policy; the order of remand was based on the ALJ’s failure to consider, at all, L.D.’s borderline 26 age at the time of his decision on her application. Similarly, the Court’s prior order directs that on 27 remand “[t]he ALJ should . . . consider the application of a higher age category to L.D.’s 1 Court did not order the ALJ explain in writing why a higher age category was not used; rather, 2 || consistent with Lockwood, the ALJ need only document that L.D.’s borderline age situation was 3 considered. See Lockwood,

. 4 || I. CONCLUSION 5 Based on the foregoing, the Commissioner’s motion to amend and alter the Court’s 6 || judgment is denied. This matter is remanded for further proceedings consistent with this and the 7 Court’s prior orders. 8 IT IS SO ORDERED. 9 Dated: November 22, 2022 10 11 VIRGINIA K. DEMARCHI 12 United States Magistrate Judge

15 16

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