UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

James Russell

v. Civil No. 13-cv-398-JL Opinion No.

Carolyn Colvin, Acting Commissioner, Social Security Administration

ORDER ON APPEAL

James Russell appeals the Social Security Administration’s

(“SSA”) denial of his applications for a period of disability and

disability insurance benefits, and the SSA’s partially favorable

decision on his application for supplemental security income. An

administrative law judge at the SSA (“ALJ”) ruled that, due to

his severe impairments of ischemic heart disease, degenerative

disc disease, depression with anxiety, sleep apnea, and obesity,

Russell became disabled as of his 50th birthday, on February 16,

2012. The ALJ thus granted his application for supplemental

security income insofar as it sought benefits from that date on.

The ALJ also ruled, however, that prior to his 50th birthday

(which fell after Russell’s date last insured), Russell was not

disabled because he retained the ability to perform jobs that

exist in significant numbers in the national economy. See

(a), 416.905(a). The ALJ accordingly denied

Russell’s applications for a period of disability and disability

insurance benefits. The Appeals Council later denied Russell’s request for review of the ALJ’s decision, see

§§ 404.968(a),

416.1468(a), which became the SSA’s final decision on Russell’s

applications, see id. §§ 404.981, 416.1481. Russell appealed the

decision to this court, which has jurisdiction under

(g) (Social Security).

Russell has filed a motion to reverse the decision. See

L.R. 9.1(b). He argues that the ALJ made several missteps in

concluding that he was not disabled before his 50th birthday.

Specifically, Russell contends that the ALJ:

• failed to apply the “borderline situation” rule, see

(b), 416.963(b), when determining the onset date of Russell’s disability;

• incorrectly concluded that Russell retained the residual functional capacity (“RFC”) to perform sedentary work prior to his 50th birthday, despite the opinions of his physicians that he could stand or walk less than two hours in an eight- hour workday;

• failed to develop the administrative record after being notified that a state agency had concluded that Russell was disabled prior to his 50th birthday; and

• failed to apply Social Security Ruling 83-20, Titles II and XVI: Onset of Disability,

(S.S.A. 1983).

The Commissioner of the SSA maintains that the ALJ committed no

error and has filed a motion for an order affirming the decision,

to which Russell has filed a response. See L.R. 9.1(e). After

careful consideration of the record and the parties’ submissions,

the court agrees with the Commissioner that the ALJ did not err,

2 and thus grants her motion to affirm (and denies Russell’s motion

to reverse) the ALJ’s decision.

I. “Borderline situation” rule

When determining whether a claimant is entitled to either

disability insurance benefits or supplemental security income, an

ALJ performs the familiar five-step sequential evaluation process

set forth in

(a)(4) and 416.920(a)(4). At

the fifth step, the ALJ must consider whether, in light of the

claimant’s RFC, age, education, and work experience, he “can make

an adjustment to other work”; if not, SSA regulations dictate a

finding that the claimant is disabled.

§§ 404.1520(a)(4)(v),

416.920(a)(4)(v). For purposes of this analysis, a claimant is

divided into one of three age categories: (1) “younger person,”

for those under age 50; (2) “person closely approaching advanced

age,” for those ages 50-54; or (3) “person of advanced age,” for

those age 55 and older. Id. §§ 404.1563(c)-(e), 416.963(c)-(e).

These categories dictated the outcome in this case: a “younger

person” with Russell’s RFC and other characteristics is not

considered disabled under the SSA regulations, but a “person

closely approaching advanced age” with the same characteristics

and RFC is. Thus, as already mentioned, the ALJ concluded that

3 Russell did not become disabled until his 50th birthday, when he

entered the latter category.

The SSA regulations, however, direct the ALJ not to “apply

the age categories mechanically in a borderline situation.” Id.

§§ 404.1563(b), 416.963(b). Rather, if the claimant 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

decision that [the claimant is] disabled,” the ALJ must “consider

whether to use the older age category after evaluating the

overall impact of all the factors of [the claimant’s] case.” Id.

Russell contends that the ALJ failed to carry out this directive

when determining the onset date of his disability.

In Russell’s view–-implicitly, but never expressly, stated

in his memoranda–-an ALJ’s determination that a claimant has

become disabled upon his entry into an older age group amounts to

a “borderline situation” requiring the ALJ to consider whether

the claimant was also disabled up to “a few days to a few months”

prior to his birthday. In this case, Russell’s interpretation of

the rule would have required the ALJ to consider whether the

actual onset date of Russell’s disability was not, in fact, his

50th birthday, but some date within the six months preceding it.1

1 Russell, relying on case law from some courts within this circuit, suggests that the “few days to a few months” referenced in §§ 404.1563(b) and 416.963(b) encompasses a six-month period.

4 That interpretation–-which is unsupported by any case law cited

by Russell, or found by this court--is incorrect.

The “borderline situation” rule does not operate to push

forward in time the onset date of disability for a claimant who

has been found to be disabled upon his attainment of an older age

category. Rather, as the text of the rule suggests, it operates

to give the benefit of the doubt to a claimant who had not yet

attained an older age category as of the relevant date for

determining his entitlement to benefits, and who would not be

found disabled if the ALJ were to apply his actual, younger age

category as of that date.

The SSA’s internal guidance on when a borderline situation

exists makes this explicit. The Hearings, Appeals and Litigation

Law Manual, or “HALLEX,” an internal SSA procedural manual,

See, e.g., Gallagher v. Astrue,

(Barbadoro, J.) (“Although the courts have varied in their interpretation of in what period of time the borderline range falls, the general consensus is that the borderline range falls somewhere around six months from the older age category.” (internal quotation marks and citation omitted)). This court need not explore that issue here, and assumes for present purposes that Russell is correct. But cf. Social Security Administration, Program Operations Manual System (POMS) § DI 25015.005(C)(4)(b)(3) (S.S.A. 2011), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015005 (last visited Sept. 29, 2014) (“Setting definitive criteria for what is meant by a few days to a few months, such as 3 months or 6 months, before attainment of the next higher age category is not appropriate. To do so is to mechanically apply age criteria and would establish additional age categories not found in the regulations.”).

5 explains that the “borderline situation” rule should be applied

“whenever the age category changes within a few months after the

alleged onset date, the date last insured (or the prescribed

period), or the date of the ALJ’s decision.” HALLEX § II-5-3-2,

(S.S.A. 2003) (emphasis added); see also Social

Security Administration, Program Operations Manual System (POMS)

§ DI 25015.005(C)(4)(b)(5) (S.S.A. 2011), available at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015005 (last

visited Sept. 29, 2014) (similar). So, as another judge of this

court has previously held, for a supplemental security income

claimant, a “borderline situation” exists where the claimant

would attain a higher age category within a few days to a few

months of the ALJ’s decision, whereas, for a disability insurance

benefits claimant, a “borderline situation” exists where the

claimant would attain a higher age category within a few days to

a few months of the date last insured. Gallagher,

,

17 n.4 (citing cases).

As the Commissioner points out, Russell was 47 years old on

his date last insured–-far more than “a few days or a few months”

from reaching the “person closely approaching advanced age”

category–-and thus did not present a “borderline situation” for

purposes of his applications for a period of disability and

disability insurance benefits. See, e.g., Swan v. Barnhart, No.

6 03-cv-130,

, at *9 (D. Me. Apr. 30, 2004) (ALJ was

not required to apply “borderline situation” rule where claimant

was over eight months away from fiftieth birthday on relevant

date); Barrett v. Apfel,

(D. Mass. 1999)

(claimant’s case “simply was not a borderline situation” where he

was over nine months away from fifty-fifth birthday on relevant

date). And, on the date of the ALJ’s decision, Russell was 50

years old--already eligible for consideration as a “person

closely approaching advanced age”--and nearly five years away

from reaching the “person of advanced age category.” For

purposes of his application for supplemental security income,

then, his case likewise did not present a “borderline

situation.”2 See Swan,

at *9; Barrett,

. The ALJ did not err by not applying the rule

set forth in §§ 404.1563(b) and 416.963(b).

II. ALJ’s RFC determination

Russell also asserts that the ALJ, in finding that he was

not disabled prior to his 50th birthday, incorrectly concluded

that he retained the RFC to perform sedentary work, as defined in

2 As of June 4, 2002, his alleged disability onset date, Russell was 40 years old and nearly ten years away from attaining a higher age category. So, insofar as that date is relevant to the existence of a “borderline situation,” it also does not help Russell here.

7

(a) and 416.967(a) (with accommodations that

are not relevant here). According to Russell, this conclusion is

inconsistent with the opinions of his treating physicians--Drs.

Lavery and McCole--that Russell was able to “stand and/or walk

. . . less than 2 hours in an 8-hour workday.” See Admin. R. at

565, 679. “[E]ven sedentary work,” Russell claims, “requires an

individual to stand or walk for at least a total of 2 hours per

day.” Proceeding on this premise, he reasons that the ALJ must

have rejected the opinions of Drs. Lavery and McCole in favor of

either (1) the ALJ’s own lay assessment of the medical evidence,

or (2) the opinion of a non-examining doctor that he was capable

of walking or standing for “about 6 hours in an 8-hour workday.”

Id. at 79. In further reliance on this premise, Russell argues

that the ALJ’s hypothetical question to the vocational expert who

testified at the administrative hearing was flawed, as it assumed

that Russell had the RFC to perform sedentary work, despite his

inability to stand or walk more than two hours per day.

The premise of Russell’s argument is incorrect. Sedentary

work does not require standing or walking “at least” two hours

per workday, as Russell claims. Rather, as the only sources he

cites in support of that premise make clear, sedentary work

requires at most two hours of standing or walking. Social

Security Ruling (“SSR”) 96-9p, Titles II and XVI: Determining

8 Capability to Do Other Work–-Implications of a Residual

Functional Capacity for Less Than A Full Range of Sedentary Work,

, at *3 (S.S.A. 1996) (“Jobs are sedentary if

walking and standing are required . . . no more than about 2

hours of an 8-hour workday.” (emphasis added)); SSR 83-10, Titles

II and XVI: Determining Capability to Do Other Work–-The Medical-

Vocational Rules of Appendix 2,

, at *5 (S.S.A.

1983) (same). So the ALJ’s conclusion that Russell was able to

perform sedentary work is entirely consistent with the opinions

of Drs. Lavery and McCole as to Russell’s capacity for standing

and walking. Cf. Boehmer v. Barnhart, No. 04-cv-577,

, *13 (E.D. Mo. Sept. 7, 2005) (opinion that claimant

could stand/walk only 1 hour per 8-hour day consistent with ALJ’s

finding that claimant could perform sedentary work); see also,

e.g., Suarez v. Astrue, No. 11-cv-756S,

, *3-4

(W.D.N.Y. Aug. 14, 2012) (limitation to standing and walking less

than 2 hours in 8-hour day is “consistent with sedentary work”);

Thompson v. Astrue, No. 08-cv-4150,

, *4-5 (N.D. Cal.

Jan. 3, 2011) (similar).

It follows that Russell’s accusation that the ALJ jettisoned

those opinions in favor of his own lay assessment of the medical

evidence, or that of the non-examining state agency physician, is

meritless. The same is true of Russell’s contention that the

9 ALJ’s hypothetical question to the vocational expert was in some

way flawed. The court finds no error in the ALJ’s RFC ruling.

III. Development of the record

Russell next argues that the ALJ did not fulfill his duty to

develop the record. As this court has previously discussed,

“[b]ecause Social Security proceedings are not adversarial in

nature, [an ALJ] has a duty to develop an adequate record from

which a reasonable conclusion can be drawn”–-a duty that, while

heightened in cases where the claimant is unrepresented, also

applies where, as here, the claimant has counsel. Gaudreault v.

Astrue,

(quoting Heggarty v. Sullivan,

(1st Cir. 1991)). Russell points out that, following

the administrative hearing before the ALJ, his counsel notified

the ALJ that a state agency had approved his application for Aid

to the Permanently and Totally Disabled on January 26, 2012, a

date three weeks before the date on which, in the ALJ’s opinion,

Russell had become disabled. Upon receiving this information,

Russell argues, the ALJ was under an obligation to conduct

further inquiry. The court disagrees.

The ALJ’s duty to develop the record arises where the ALJ is

“alerted by the record to the presence of an issue.” Gillis v.

Astrue,

(quoting Santiago v. Sec’y of HHS,

(1st Cir. 1991)) (emphasis and internal quotation marks

10 omitted). The mere fact that another agency has concluded that

the claimant was disabled as of a certain date does not suggest

that the record before the ALJ is insufficient or incomplete in

some way that would trigger the ALJ’s duty to seek out additional

information. Cf. Gaudreault,

(ALJ failed

to adequately develop record where there was obvious gap in

medical records). And, in any event, for an ALJ’s failure to

develop the record to constitute reversible error, the claimant

must demonstrate that he or she has suffered some prejudice as a

result.

Russell’s motion to reverse makes no attempt to

explain what additional evidence the ALJ could or should have

obtained that would have resulted in a more favorable outcome.

Thus, even accepting the dubious proposition that the ALJ should

have done something more after receiving notice of the state

agency decision, Russell has demonstrated no prejudice that would

warrant remand here.3

3 In response to the Commissioner’s motion to affirm, under the heading “[f]ailure to develop the record,” Russell suggests that the ALJ also erred by not explaining what consideration, if any, he had given to the state agency decision. By failing to develop this argument in his own motion to reverse, Russell has arguably waived it. See Lawton v. Astrue,

. And the argument fails in any event. While ALJs ordinarily should explain the consideration given to disability determinations by other governmental agencies, the failure to do so does not necessitate remand where, as here, the determination consists of “a single-page document” devoid of “any evidence or relevant analysis detailing the agency’s rationale for their award.” Lawrence v. Astrue,

.

11 IV. Social Security Ruling 83-20

Finally, Russell argues that the ALJ failed to apply SSR 83-

20, Titles II and XVI: Onset of Disability,

(S.S.A.

1983), in determining the onset date of his disability. That

ruling acknowledges that, “[w]ith slowly progressive impairments,

it is sometimes impossible to obtain medical evidence

establishing the precise date an impairment became disabling.”

Id. at *2. It counsels:

In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the [ALJ] should call on the services of a medical advisor when onset must be inferred.

Id. at *2-*3. Russell asserts that because his heart disease and

degenerative disc disease are both “chronic and progressive,” the

ALJ should have asked a medical advisor to assist in pinning down

the precise date on which those impairments became disabling.

Russell is incorrect for exactly the reason advanced by the

Commissioner in her motion to affirm: the ALJ’s ruling as to the

onset of his disability was not based on a finding that Russell’s

impairments had progressively deteriorated to the point where he

could no longer work, such that the exact onset date of Russell’s

disability was ambiguous and the ALJ had to pinpoint it through

12 educated guesswork. Instead, the ALJ--largely adopting the

opinions of Dr. Lavery, Russell’s treating physician--found that

Russell’s RFC had been more or less static since June 4, 2002.

Applying the Medical Vocational Guidelines at 20 C.F.R. Pt. 404,

Subpt. P, App. 2, the ALJ concluded that although Russell’s RFC

was not disabling for an individual under age 50 with his work

experience and education, it was disabling for an individual age

50 or older with those characteristics.4 See Part I, supra. The

ALJ’s determination that the onset date of Russell’s disability

was his 50th birthday, then, was not based on ambiguous medical

evidence regarding the slow progression of his impairments, and

SSR 83-20 had no applicability. See, e.g,, Perkins v. Chater,

(7th Cir. 1997) (concluding SSR 83-20 was

inapplicable where “the ALJ found that the disabilities from

which [claimant] suffers were relatively constant” and determined

that “[i]t was only when his age reached the level specified in

the Medical-Vocational guidelines that he qualified as

‘disabled’”).

4 Russell does not argue that the ALJ erred in finding that his RFC had not changed between June 4, 2002 and the date of the ALJ’s decision, or that the ALJ incorrectly applied the Medical Vocational Guidelines.

13 V. Conclusion

For the foregoing reasons, Russell’s motion to reverse the

ALJ’s decision5 is DENIED, and the Commissioner’s motion to

affirm it6 is GRANTED. See

(g). The clerk shall

enter judgment accordingly and close the case.7

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 29, 2014

cc: Tamara N. Gallagher, Esq. Karen B. Fitzmaurice, Esq. T. David Plourde, Esq.

5 Document no. 8. 6 Document no. 9. 7 Russell’s amended motion to reverse (document no. 8) fails to comply with the formatting requirements set forth in Local Rule 5.1(a)–-specifically, the requirements that filings “have no less than one (1) inch margins” and “be double spaced except for quoted material.” These violations do not appear to have allowed Russell any undue advantage in this case, so the court will not take any remedial action, but counsel are cautioned that the court expects their adherence to L.R. 5.1(a) in the future.

14