UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Rebecca Benoit

v. Civil No. 17-cv-219-JL Opinion No.

U.S. Social Security Administration, Commissioner

ORDER ON APPEAL

Rebecca Benoit has appealed the Social Security

Administration’s (“SSA”) denial of her application for a period

of disability and disability insurance benefits. An

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

severe impairments, Benoit retains the residual functional

capacity (“RFC”) to perform jobs that exist in significant

numbers in the national economy, and thus is not disabled. See

(a), 416.905(a). The Appeals Council later

denied Benoit’s request for review, see

§ 404.967, with the

result that the ALJ’s decision became the final decision on her

application, see id. § 404.981. Benoit then appealed the

decision to this court, which has jurisdiction under

(g) (Social Security).

Benoit has moved to reverse the decision. See LR 9.1(b).

The Acting Commissioner of the SSA has cross-moved for an order

affirming the ALJ’s decision. See LR 9.1(e). After careful consideration, the court grants Benoit’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). The court “must uphold a denial of social

security . . . benefits unless ‘the [Acting Commissioner] has

committed a legal or factual error in evaluating a particular

claim.’” Manso-Pizarro v. Sec’y of Health and Human Servs.,

(1st Cir. 1996) (per curiam) (quoting Sullivan v.

Hudson,

(1989)).

Background1

The ALJ invoked the requisite five-step sequential

evaluation process in assessing Benoit’s request for disability

1 The court recounts here only those facts relevant to the instant appeal. The parties’ more complete recitation in their

2 and disability insurance benefits. See

,

416.920. After determining that Benoit had not engaged in

substantial gainful activity after the alleged onset of her

disability on August 28, 2013, the ALJ analyzed the severity of

her impairments. At this second step, the ALJ concluded that

Benoit had two severe impairments: affective disorder and

anxiety disorders.2

At the third step, the ALJ found that Benoit’s severe

impairments did not meet or “medically equal” the severity of

one of the impairments listed in the Social Security

regulations.3 See

(d), 404.1525, 404.1526,

416.920(d), 416.925, and 416.926. After reviewing the medical

evidence of record, medical opinions, and Benoit’s own

statements, the ALJ concluded that Benoit retained the RFC to

perform a full range of work at all exertional levels, but with

the nonexertional limitations that the work involve only

“simple, routine tasks,” and “[w]hen dealing with changes in the

work setting, she is limited to simple work related decisions.”4

Finding that, even limited in this manner, Benoit was able to

Joint Statement of Material Facts (doc. no. 14) is incorporated by reference. See LR 9.1(d). 2 Admin. R. at 22-23. 3 Id. at 23-24. 4 Admin. R. at 24-25.

3 perform jobs that exist in significant numbers in the national

economy, see

and 416.966, the ALJ

concluded his analysis and found that Benoit was not disabled

within the meaning of the Social Security Act.

Analysis

After her administrative hearing and after the ALJ issued

his decision denying Benoit’s application for a period of

disability and disability benefits, Benoit requested review by

the Appeals Council. She submitted for the Council’s

consideration evidence that she obtained after the ALJ’s

decision issued on February 23, 2016. Specifically, she

submitted two pieces of evidence: (1) a letter from Lina

Juranty, LICSW, dated April 19, 2016, contesting the ALJ’s

interpretation and application to Benoit’s case of certain

notations in her records from Benoit’s therapy session5; and

(2) a “Mental Impairment Questionnaire” completed by Melinda

Wolfe, APRN, and dated May 17, 2016.6 Benoit argues that the

Appeals Council erred by failing to consider this newly-

submitted evidence.7

5 Admin. R. at 585. 6 Admin. R. at 589-92. 7 Benoit also challenges the ALJ’s evaluation of her mental impairments and the opinion evidence of a non-examining psychologist, as well as his findings that her symptoms were not supported by or consistent with the medical record and her daily activities. Having concluded that the Appeals Council erred in

4 The Appeals Council addresses new evidence submitted after

the ALJ’s decision using the following process:

If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.

(b).8 In Benoit’s case, the Appeals Council

acknowledged the additional evidence.9 It concluded that this

evidence “is about a later time,” and therefore “does not affect

the decision about whether [she was] disabled beginning on or

before February 23, 2016.”10 Accordingly, the Appeals Council

denied Benoit’s request for review.11

“[A]n Appeals Council refusal to review the ALJ may be

reviewable where it gives an egregiously mistaken ground for”

its characterization of the evidence she submitted to it, the court need not address these arguments. 8 A new version of this regulation was enacted on January 17, 2017. The Appeals Council began applying the new rules on May 1, 2017. When it reviewed this case on April 12, 2017, it therefore did so under the prior rule, which the court cites here. 9 Id. at 2. 10 Id. 11 Admin. R. at 1.

5 its refusal to review the ALJ’s decision. Mills v. Apfel,

(1st Cir. 2001). “[I]f the Appeals Council mistakenly

rejected the new evidence on the ground that it was not

material, . . . a court ought to be able to correct that mistake

. . . .”

.

The Appeals Council offered a mistaken ground for refusing

to review the ALJ’s decision in Benoit’s case. As Benoit points

out, the newly-submitted evidence does not solely relate to the

time following the ALJ’s decision. To the contrary, though

created after that decision, the evidence relates to the period

before the ALJ issued his decision. Specifically, as Benoit

observes, Juranty’s letter elaborated on notes that the ALJ

addressed in his decision,12 and thus concerns Benoit’s

presentation during treatment that occurred before that decision

was rendered. Similarly, Wolfe’s questionnaire relates to the

period before February 23, 2016 insofar as the opinion

(1) identifies Benoit’s symptoms “[a]s of Oct 2013 and initial

assessment with this provider,” noting that “many, if not all,

are still present” at the time of assessment13; (2) identifies

five periods of decompensation from 201514; and (3) suggests

that, “because of the level of [symptoms] [Benoit] experiences,

12 Admin. R. at 585;

. 13 Admin. R. at 589. 14 Id. at 592.

6 it is difficult to see where if any progress has over 2½ years

been made as it is very, very slow.”15 Thus, Wolfe’s analysis is

at least partially retrospective in nature and therefore does

relate to Benoit’s condition during the time before the ALJ

issued his decision. As Judge McCafferty has explained, the

fact that a questionnaire also contains statements relating to

the claimant’s condition “after the date of the ALJ’s decision

does nothing to undermine the retrospective character” of

statements concerning the claimant’s condition during the

relevant timeframe.16 Chigas v. Colvin,

.

The Acting Commissioner argues that, even if the additional

evidence related to the relevant time period, the Appeals

Council still would not have considered it. The regulations in

force at the time of the Appeals Council’s decision required,

before any such review, that the claimant demonstrate (1) “a

reasonable probability that the evidence, alone or when

considered with the other evidence of record, would change the

outcome of the decision,” and (2) that the claimant could not

have submitted the evidence before the ALJ’s decision for one of

15 Id. at 592. 16It is not so clear that Juranty’s letter also relates to the period prior to the ALJ’s decision. The court need not resolve that conclusively, however, as Wolfe’s questionnaire clearly does.

7 several enumerated reasons.17

(c). Invoking

this regulation, the Acting Commissioner contends that the

Appeals Council would not have considered the additional

evidence anyway, because Benoit provided no justification for

submitting the evidence late and because it would not alter the

outcome of the ALJ’s decision.18

That may well be the case. But the Appeals Council gave a

single reason for not considering the evidence: the fact that

it did not relate to the relevant time period.19 And that

factual conclusion is incorrect. While there may be other

reasons the Appeals Council would not consider the additional

evidence that Benoit submitted, like Judge McCafferty, this

court “is not inclined to affirm the Appeals Council under a

rationale that the Appeals Council did not articulate itself.”

Chigas,

, 11. Cf. Gilbert v. Colvin, No. 14-cv-553-

LM,

, at *6 (D.N.H. June 16, 2015) (“[I]t is not

for the Acting Commissioner to make arguments in support of the

ALJ’s decision that the ALJ did not make.”) (citing Gurney v.

Soc. Sec. Admin. Comm’r,

(D. Me. 2012).

17This regulation was removed at the same time that

was amended. It was, however, in force at the time of the Appeals Council’s decision. 18 Mem. in Support of Mot. to Affirm (doc. no. 15-1) at 6-8. 19 Admin. R. at 2.

8 Conclusion

For these reasons, the Acting Commissioner’s motion to

affirm20 is DENIED and Benoit’s motion to reverse and remand the

Acting Commissioner’s decision21 is GRANTED to the extent that

the case is remanded to the Acting Commissioner for further

proceedings. 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: June 22, 2018

cc: Sheila O’Leary Zakre, Esq. Terry L. Ollila, AUSA

20 Document no. 11. 21 Document no. 8.

9