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Russell v. Colvin

United States District Court, D. New Hampshire

September 29, 2014

James Russell,
Carolyn Colvin, Acting Commissioner, Social Security Administration No. 2014 DNH 205.


JOSEPH N. LAPLANTE, District Judge.

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 20 C.F.R. §§ 404.1505(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 id. §§ 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 42 U.S.C. § 405(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 20 C.F.R. §§ 404.1563(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, 1983 WL 31249 (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, 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 20 C.F.R. §§ 404.1520(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. Id . §§ 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 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] 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, 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, 2003 WL 25498826 (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 (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, ...

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