UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Brian Scott Gage

v. Civil No. 17-cv-725-JL Opinion No.

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. See

(a),

416.905(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

§§ 404.981, 416.1481. Gage

then appealed the decision to this court, which has jurisdiction

under

(g) (Social Security).

Gage has moved to reverse the ALJ’s decision. See

LR 9.1(b). 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.,

(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,”

that is, “such evidence as a

reasonable mind might accept as adequate to support a

conclusion,” Richardson v. Perales,

(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. See

,

416.920. After determining that Gage had not engaged in

substantial gainful activity after the alleged onset of his

1 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.

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

(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

(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

22Gage 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. 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

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.” HALLEX § I-2-6-58(A).

7 Admin. Rec. at 12. 8 Id.

5 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. These are, however,

merely examples of material evidence. 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,

, 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.”

(a)(3); see also

§ 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,

, at *6 (D.N.H. Mar.

19, 2018). They are, however, “not entirely irrelevant.”

“[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,

, at *7 (D.N.H. June 18, 2012) (McAuliffe, J.) (quoting

DeBoard v. Comm’r of Social Sec.,

(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

10The 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.

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: October 31, 2018

cc: 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,

(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