Gage v. US Social Security Administration, Acting Commissioner

Filing 13

///ORDER granting 9 Motion to Reverse Decision of Commissioner; denying 11 Motion to Affirm Decision of Commissioner. The Clerk of Court shall enter judgment in accordance with this order and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Brian Scott Gage
v.

Civil No. 17-cv-725-JL
Opinion No. 2018 DNH 212

U.S. Social Security
Administration, Acting
Commissioner
ORDER ON APPEAL
Brian Scott Gage has appealed the Social Security
Administration’s (“SSA”) denial of his application for a period
of disability and disability insurance benefits.

The

Administrative Law Judge (“ALJ”) at the SSA ruled that, despite
several severe impairments, Gage retained the residual
functional capacity (“RFC”) to perform jobs that exist in
significant numbers in the national economy after the alleged
onset date of his disability.
416.905(a).

See 20 C.F.R. §§ 404.1505(a),

The Appeals Council denied Gage’s request for

review, with the result that the ALJ’s decision became the final
decision on his application, see id. §§ 404.981, 416.1481.

Gage

then appealed the decision to this court, which has jurisdiction
under 42 U.S.C. § 405(g) (Social Security).
Gage has moved to reverse the ALJ’s decision.
LR 9.1(b).

See

The Acting Commissioner of the SSA has cross-moved

for an order affirming the decision.

See LR 9.1(c).

After

careful consideration, the court grants Gage’s motion and denies
the Acting Commissioner’s motion.
Applicable legal standard
The court limits its review of a final decision of the SSA
“to determining whether the ALJ used the proper legal standards
and found facts upon the proper quantum of evidence.”

Ward v.

Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).

It

“review[s] questions of law de novo, but defer[s] to the
Commissioner’s findings of fact, so long as they are supported
by substantial evidence,” id., that is, “such evidence as a
reasonable mind might accept as adequate to support a
conclusion,” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quotations omitted).
Background1
The ALJ invoked the requisite five-step sequential
evaluation process in assessing Gage’s request for disability
and disability insurance benefits.
416.920.

See 20 C.F.R. §§ 404.1520,

After determining that Gage had not engaged in

substantial gainful activity after the alleged onset of his

The court recounts here only those facts relevant to the
instant appeal. The parties’ more complete recitation in their
Joint Statement of Material Facts (doc. no. 12) is incorporated
by reference.
1

2

disability,2 the ALJ analyzed the severity of his impairments.
At this second step, the ALJ concluded that Gage had the
following severe impairments:

“degenerative disc disease of the

lumbar spine, personality disorder, depression, and substance
addiction disorder.”3

At the third step, the ALJ found that

Gage’s severe impairments did not meet or “medically equal” the
severity of one of the impairments listed in the Social Security
regulations.4

See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926.
After reviewing the medical evidence of record, medical
opinions, and Gage’s own statements, the ALJ concluded that he
retained the RFC to perform medium work, see 20 C.F.R.
§§ 404.1567(c) and 416.967(c), with a variety of physical,
mental, and social limitations.5

Finding that, even limited in

this manner, Gage was able to perform jobs that exist in

Gage amended his alleged onset date, changing it from
January 15, 2007, to January 14, 2014. As a result, the ALJ
purported to consider only “evidence dated within 12 months of
the [new] alleged onset date.” Admin. Rec. at 12. Despite this
limitation, the ALJ proceeded to determine that Gage had “not
engaged in substantial gainful employment since January 15,
2007, the alleged onset date,” id. at 15, and that he had “not
been under a disability . . . from January 15, 2007, through the
date of this decision,” id. at 26.
22

3

Admin. Rec. at 15.

4

Id. at 16.

5

Admin. Rec. at 17.

3

significant numbers in the national economy between his alleged
onset date and the date of the ALJ’s opinion, see 20 C.F.R.
§§ 404.1566 and 416.966, the ALJ concluded his analysis and
found that Gage was not disabled within the meaning of the
Social Security Act during that time period.6
Analysis
Gage challenges the ALJ’s decision on three fronts.

First,

he argues that the ALJ, at step three, failed to consider
whether Gage’s severe substance addiction and personality
disorders met the appropriate mental listings.

Second, he

contends that the ALJ improperly weighed the opinion evidence in
crafting his RFC.

Finally, he argues that the ALJ improperly

narrowed his review of the evidence to that dated within 12
months of his alleged onset date and, further, failed to
consider evidence that the ALJ said, at the hearing, he had
already reviewed and would include in the record.

Because the

court agrees that the ALJ improperly narrowed the scope of the
evidence reviewed, and remands on that basis, it need not--and
therefore does not--address Gage’s remaining arguments.
For his Title II claim, Gage claimed that he was disabled
as of January 1, 2014.

In light of that date, the ALJ

explained:
6

Admin. Rec. at 25-26.

4

Pursuant to HALLEX I-2-6-58, the only material
evidence is ‘evidence dated within 12 months of the
alleged onset date.’ The records within this 12-month
period are material to show that the conditions
alleged as disabling have existed, as required by the
Social Security Act, for 12 months. The records dated
prior to January 1, 2013, then, are not material.7
With respect to Gage’s Title XVI application, the ALJ explained
that, pursuant to the same provision of the SSA’s Hearings,
Appeals, and Litigation Law Manual (“HALLEX”), “[d]iscussion of
evidence after March 31, 2014, and prior to March 13, 2015,” the
date of Gage’s Title XVI application, “is limited to placing the
claimant’s current symptoms and limitations into context or used
solely to evaluate the consistency of subjective complaints to
objective findings.

Thus, evidence outside the periods at issue

was not considered when formulating the claimant’s current
limitations below.”8
In so limiting his consideration of the record evidence,
the ALJ misconstrued the HALLEX provision on which he relied.
Under that provision, subject to certain limitations, the ALJ
“will generally admit into the record any evidence that he or
she determines is material to the issues in the case. Evidence
is material if it is relevant, i.e., involves or is directly
related to issues being adjudicated.”

7

Admin. Rec. at 12.

8

Id.

5

HALLEX § I-2-6-58(A).

After defining materiality, that provision then lists five
“examples of evidence that may be material to a claim for
disability,” including “[e]vidence dated within 12 months of the
alleged onset date under a title II application for disability
insurance benefits,” and “[e]vidence dated on or after the
application date or protective filing date of a title XVI
application claiming disability.”

Id.

merely examples of material evidence.

These are, however,
They are not, as the ALJ

concluded, “the only material evidence . . .”9

An ALJ who limits

his consideration to the evidence listed in those examples
“misread[s] HALLEX I-2-6-58(A) because, by its own terms, [that
provision] merely offers examples of evidence that may be
considered material without categorically determining evidence
to be immaterial simply because it does not fit within a listed
example.”

Douglas v. US Soc. Sec. Admin., No. 15-CV-378-PB,

2016 WL 5660315, at *3 (D.N.H. Sept. 30, 2016) (Barbadoro, J.)
And the ALJ’s incorrect construction runs contrary to SSA
regulations.

The SSA provides that it “will consider all

evidence in [a claimant’s] case record when [it] make[s] a
determination or decision whether [the claimant is] disabled.”
20 C.F.R. §§ 404.1520(a)(3); see also id. § 404.1529(d)(3) (“If
your impairment is not the same as a listed impairment, we must

9

Admin. Rec. at 12 (emphasis added).

6

determine whether your impairment(s) is medically equivalent to
a listed impairment.

Section 404.1526 explains how we make this

determination. Under § 404.1526(b), we will consider medical
equivalence based on all evidence in your case record about your
impairment(s) and its effects on you that is relevant to this
finding.”).
It is true that “opinions that predate a claimant’s alleged
onset of disability are of limited relevance.”

Hartford v.

Berryhill, No. 17-CV-467-SM, 2018 WL 1385913, at *6 (D.N.H. Mar.
19, 2018).

They are, however, “not entirely irrelevant.”

Id.

“[S]uch evidence, ‘when evaluated in combination with later
evidence, may help establish disability,’ particularly where-as could be the case here--‘the disabling condition is
progressive.’”

Gaudreault v. Astrue, No. 11-CV-73-JL, 2012 WL

2277907, at *7 (D.N.H. June 18, 2012) (McAuliffe, J.) (quoting
DeBoard v. Comm’r of Social Sec., 211 Fed. Appx. 411, 414 (6th
Cir.2006)).

The ALJ thus erred by excluding from his

consideration evidence not dated within 12 months of Gage’s
alleged onset date.10

The court thus need not reach the issue of whether the ALJ
erred by failing to consider four exhibits that Gage produced at
the hearing. It observes, however, that the ALJ stated on the
record that he had “taken a real look at [those documents]
already and so if you’ll submit the rest of them, that will be
fine and then the record would be complete.” Admin. Rec. at 49.
10

7

Conclusion
For these reasons, Gage’s motion to reverse and remand the
Acting Commissioner’s decision11 is GRANTED and the Acting
Commissioner’s motion to affirm12 is DENIED.

The Clerk of Court

shall enter judgment in accordance with this order and close the
case.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated:
cc:

October 31, 2018

Janine Gawryl, Esq.
Terry L. Ollila, AUSA

Gage and his attorney reasonably could construe the ALJ’s words
as accepting those exhibits into the record.
While the Acting Commissioner is correct that the ALJ “may
decline to consider” written evidence not submitted at least
five business days before a hearing, 20 C.F.R. § 405.331(a), it
does appear inequitable for the ALJ to agree, at the hearing, to
include the evidence in the record, and then to decline to admit
that evidence in his written order. Compare Admin. Rec. at 49
with id. at 13.
11

Document no. 9.

12

Document no. 11.

8