Shumway v. Commissioner of Social Security

OCR transcription for search; preserved printed pages are authoritative

Case 5:24-cv-01228-MJK Document15_ Filed 03/19/26 Page 1 of 28

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Joseph G.,
Plaintiff,
V. 5:24-CV-1228
(MJK)

Commissioner of Social Security
Defendant.

Howard D. Olinsky Esq., for Plaintiff
Kristina D. Cohn Esq., Special Asst. U.S. Attorney, for Defendant

Mitchell J. Katz, U.S. Magistrate Judge

MEMORANDUM-DECISION AND ORDER

Joseph 8. 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.

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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).

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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

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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. Jd. 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

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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).

Ill. 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).

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At step two, ALJ Hoffman concluded that Joseph 8S. 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).

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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).

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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

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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

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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.” Jd. §§
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.” Jd. §§
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-

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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; (8) 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. 1653).

Joseph S. 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 S.’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.

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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.
Kiyakazi, 22 F.4th 358, 361 (2d Cir. 2021), it may be discounted if it is
not “supported by substantial evidence.” Schillo v. Saul, 31 F.4* 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

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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.
Commy7 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.”).

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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 S. 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,

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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 8. 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.

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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 S. 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, 1603).
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, and a
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

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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 0/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]ere 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

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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.” (PI. Br., pg. 22) (quoting SSR § 83-14) (emphasis in

original). The Court disagrees.

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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 S.’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 138, 2020) (finding no error in
relying on the Grids where ALJ limited the plaintiff to ight work with

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

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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);

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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 S.’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.

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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 to a
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

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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.
Comm 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

999

considers ‘the overall impact of all the factors in [the] case.” Jd. (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 S. 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.” Ud.) (quoting T. 1104). Fourth, ALJ Hoffman “improperly
considered work experience which was done outside the period relevant
to the claim. (U/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

Dated: March 19, 2026 Muteki 9, K& Mitchell J Katz

Date: 2026.03.19
13:33:59 -04'00'

Hon. Mitchell J. Katz
U.S. Magistrate Judge

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