UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Joseph Lagorio
v. Civil No. 19-cv-571-LM Opinion No. 2020 DNH 170 P Andrew Saul, Commissioner of Social Security
ORDER
Pro se plaintiff Richard Joseph Lagorio seeks judicial review of the decision of
the Commissioner of the Social Security Administration denying his application for
a period of child’s disability benefits. Lagorio moves to reverse the Commissioner’s
decision, contending that the Administrative Law Judge (“ALJ”) erred in finding
that he engaged in substantial gainful activity after reaching the age of 22, making
him ineligible for such benefits. The Administration moves to affirm.
Lagorio, who is currently sixty years old, seeks child’s disability benefits
retroactively to May 23, 2008, the date of his father’s death. For an adult claimant
like Lagorio to establish eligibility for child’s disability benefits, he must
demonstrate continuous disability between the date of his twenty-second birthday
(in Lagorio’s case, March 7, 1982) and the date he applied for benefits (here, June
29, 2016). For purposes of the Social Security Act, disability is defined in part as the
inability to engage in “substantial gainful activity.” 42 U.S.C. § 423(d)(1)(A).
During a period in 1999 and 2000, when he was 39-40 years old, Lagorio
earned employment-related compensation in excess of the statutory threshold for
establishing a rebuttable presumption of capacity to engage in substantial gainful activity. On the sole basis of Lagorio’s earnings during that period, the ALJ found
that Lagorio had not been continuously disabled between the date of his twenty-
second birthday and the date he applied for benefits. However, the ALJ failed to
address or consider Lagorio’s arguments that, notwithstanding his earnings, he
lacked the capacity for substantial gainful employment. In addition, the ALJ
disregarded much of the evidence Lagorio submitted to rebut the substantial
gainful activity presumption. In light of the ALJ’s failure to consider material legal
questions and supporting materials, the ALJ’s decision was not supported by
substantial evidence. The Commissioner’s decision is therefore reversed, and this
case remanded to the Administration for further proceedings consistent with this
opinion.
STANDARD OF REVIEW
Lagorio brings this action pursuant to 42 U.S.C. § 405(g). In reviewing the
final decision of the Commissioner under Section 405(g), the court “is limited to
determining whether the ALJ deployed the proper legal standards and found facts
upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to
the ALJ’s factual findings as long as they are supported by substantial evidence. 42
U.S.C. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016).
“Substantial-evidence review is more deferential than it might sound to the lay ear:
though certainly ‘more than a scintilla’ of evidence is required to meet the
2 benchmark, a preponderance of evidence is not.” Purdy v. Berryhill, 887 F.3d 7, 13
(1st Cir. 2018) (citation omitted). Rather, the court “must uphold the
Commissioner’s findings if a reasonable mind, reviewing the evidence in the record
as a whole, could accept it as adequate to support her conclusion.” Id. (citation and
internal modification omitted).
CHILD’S DISABILTY BENEFITS
The child’s benefits provisions of the Social Security Act (the “Act”) “were
enacted to protect any child financially dependent on an insured wage earner in the
event that that wage earner becomes unable to continue providing for the child’s
support.” Suarez v. Sec’y of Health & Human Servs., 755 F.2d 1, 3 (1st Cir. 1985)
(citing Adams v. Weinberger, 521 F.2d 656, 659 (2d Cir. 1975)). For a child’s
disability benefits claimant over the age of 18 to be eligible for a period of benefits,
the claimant (1) must be unmarried, (2) must be the child of a person insured under
the Act who either has died or is entitled to disability benefits under the Act,
(3) must have been financially dependent on that insured person at the time the
person died or became eligible for benefits, and (4) must establish that he “is under
a disability . . . which began before he attained the age of 22.” 42 U.S.C. § 402(d)(1);
20 C.F.R. § 404.350.
For purposes of the Act, disability is defined in pertinent part as the
“inability to engage in any substantial gainful activity” due to an impairment. 42
U.S.C. § 423(d)(1)(A). To establish eligibility for benefits, an adult child’s disability
3 benefits claimant must therefore demonstrate “that he has suffered from a
continuous, uninterrupted inability to engage in substantial gainful activity. . . from
before age 22 through the date on which he applied for benefits.” Maloney v.
Barnhart, Case No. 05-CV-122-SM, 2006 WL 1134925, at *2 (D.N.H. Apr. 28, 2006)
(citing Suarez, 755 F.2d at 3-4).
The Commissioner has promulgated regulations establishing a rebuttable
presumption of capacity to engage in substantial gainful activity where a claimant’s
monthly employment earnings exceed a specified threshold. See 20 C.F.R. §
404.1574(b)(2). The applicable threshold is determined by reference to the year and
the month in which the claimant worked.1 See id.
A period of employment lasting six months or less may nevertheless be
considered an unsuccessful work attempt, notwithstanding a claimant’s earnings in
excess of the applicable earnings threshold. See id. § 404.1574(c). Such a period of
employment will be considered an unsuccessful work attempt, and will not
constitute evidence of the claimant’s ability to engage in substantial gainful
activity, if two conditions are met. First, the claimant’s impairments must have
caused the claimant to stop working (or to stop receiving compensation above the
minimum earnings threshold). See id. Second, the claimant must have been entirely
1 For months falling between July 1999 through December 2000 (when
Lagorio worked), the rebuttable presumption of capacity to engage in substantial gainful activity arises if a claimant earned more than $700 per month. See 20 C.F.R. § 404.1574(b)(2)(i).
4 out of work for at least 30 consecutive days both before and after any such period of
employment. See id.
Moreover, where a claimant’s work was performed under “special conditions”
that accommodated the claimant’s impairments, the fact that the claimant earned
more than the minimum earnings threshold may be insufficient to establish that he
was able to engage in substantial gainful activity. See id. § 404.1573(c). Such
“special conditions” include, without limitation: the claimant’s need for and receipt
of special assistance from other employees in performing his job duties; permission
for the claimant to take frequent rest breaks; and permission for the claimant to
work at a lower standard of productivity or efficiency than other employees. See id.
The same five-step sequential evaluation process the Commissioner has
established for determining whether a claimant is disabled applies when deciding
whether a claimant is entitled to a period of child’s disability benefits. See 20 C.F.R.
§ 404.1520(a)(2). Here, however, the only relevant step is the first step, at which the
claimant has the burden to establish that he has not engaged in substantial gainful
activity at any time after reaching the age of 22. See, e.g., Charles H. v. Berryhill,
Case No. 2:17-CV-00273-DBH, 2018 WL 3493074, at *2 (D. Me. July 20, 2018)
(adopted, No. 2:17-CV-273-DBH, 2018 WL 3857606 (D. Me. Aug. 14, 2018)); see also
42 U.S.C. § 402(d)(1); 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.350; 20 C.F.R. §
404.1520(a)(4)(i); Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001).
The ALJ here found that Lagorio had engaged in substantial gainful activity
between reaching the age of 22 and applying for child’s disability benefits. For that
5 reason, the ALJ’s analysis ended at the first step. Thus, the court’s analysis focuses
only on whether the ALJ’s findings at the first step are supported by substantial
evidence and made according to the correct legal standards.
BACKGROUND
Lagorio was born with a congenital degenerative bone disease on March 7,
1960. Lagorio’s father died on May 23, 2008, when Lagorio was 48 years old.
In June 2014, Lagorio filed an application for Supplemental Security Income
(“SSI”) benefits alleging disability due to impairments caused by his bone disease.
In September 2015, the Administration found that Lagorio had been disabled due to
those impairments since September 1, 2001, and awarded him SSI benefits
retroactively to that date.
On June 29, 2016, when he was 56 years old, Lagorio filed this application for
child’s disability benefits. Lagorio seeks child’s disability benefits retroactively to
May 23, 2008, the date of his father’s death and the date he allegedly became
eligible to receive such benefits.2 In support of his application, Lagorio alleges that
he is unmarried, that he was financially dependent on his father until his father’s
2 The long duration between the date Lagorio allegedly became eligible for
child’s disability benefits and the date he filed his application is immaterial to the court’s review; a claimant entitled to a period of child’s disability benefits may properly apply to receive such benefits at any time after becoming eligible to do so, without regard to the claimant’s age. See, e.g., Stockford v. Soc. Sec. Admin. Com'r, Case No. 1:11-CV-00076-NT, 2012 WL 528128, at *2 (D. Me. Feb. 15, 2012) (aff'd sub nom. Stockford v. Astrue, Case No. 1:11-CV-76-NT, 2012 WL 899617 (D. Me. Mar. 15, 2012)).
6 death, and that his father had been insured under the Act when he died in 2008.
Lagorio further alleges, for the first time, that for purposes of his child’s disability
benefits application his onset date for disability due to degenerative bone disease
was not (as previously determined by the Administration in connection with his SSI
application) September 1, 2001, but rather July 16, 1971.3
The Administration denied Lagorio’s child’s disability benefits application on
August 16, 2016, and again on reconsideration on November 16, 2016. The
Administration issued both denials on the same ground: that Lagorio had engaged
in substantial gainful activity after reaching the age of 22. Lagorio requested a
hearing before an ALJ for further reconsideration of his application. The hearing
took place on December 11, 2017.4 Lagorio testified at the hearing.
The ALJ issued an unfavorable decision on January 31, 2018. Admin. Rec. at
16-19. At the first step of the sequential process, he found that Lagorio had engaged
in substantial gainful activity in 1999 and 2000. Id. at 18. Specifically, the ALJ
determined that Lagorio had been employed by Stonyfield Yogurt (“Stonyfield”) in
two different positions during the seven-month period from December 1999 through
June 2000, and that his earnings during this period exceeded the applicable
3 On July 16, 1971, Lagorio was 11 years old. According to Lagorio’s
testimony, on that date he underwent hip surgery to address a slipped capital femoral epiphysis resulting from his bone disease. After the surgery he suffered from “constant and significant pain, stiffness and nerve damage from that point forward.” Admin. Rec. at 73.
4 Lagorio was represented by counsel at the hearing before the ALJ. However,
Lagorio has not been represented by counsel at any stage of proceedings before this court.
7 statutory minimum threshold ($700 per month) to constitute substantial gainful
activity for purposes of the Act. Id.
In support of this determination, the ALJ relied chiefly on an Administration-
generated summary of Lagorio’s yearly earnings for each of the years from 1991
through 2017, id. at 57 (the “Earnings Summary”),5 and to a lesser extent on
Lagorio’s hearing testimony, id. at 143-156. Id. at 16-19. The administrative record
reflects that the ALJ also had available to him a Work Activity Report, id. at 28-35,
filed in support of Lagorio’s application, as well as Lagorio’s affidavit, id. at 73-108,
submitted directly to the ALJ in advance of the hearing. Both the Work Activity
Report and the affidavit contain evidence bearing on the circumstances, terms, and
conditions of Lagorio’s employment at Stonyfield. However, the ALJ did not
consider them in connection with his conclusion that Lagorio’s employment
constituted substantial gainful activity. Id. at 16-19.
As the ALJ correctly noted, the Earnings Summary reflects that Lagorio
received as income $5,266.87 in 1999 and $26,247.41 in 2000. Id. at 18; see also
Earnings Summary at 57. The ALJ further noted that Lagorio testified to working
for Stonyfield as a packer for approximately three months beginning in December
1999, and subsequently as a forklift operator for approximately four months.
Admin. Rec. at 18, see also id. at 143-146, 154. On the sole basis of that evidence,
5 Lagorio earned income only in 1991 and in 1999 through 2002. The amounts
he earned in 1991 and in 2001-2002 were well below the applicable minimum earnings thresholds. See Earnings Summary.
8 the ALJ concluded that Lagorio engaged in substantial gainful activity during the
seven-month period from December 1999 through June 2000.6 See id. at 18.
Accordingly, the ALJ found that Lagorio could not have been continuously disabled
between reaching the age of 22 (in 1982) and the date he filed for child’s disability
benefits (in 2016), and therefore was not entitled to award of benefits. The ALJ
ended the sequential process at the first step without making any further material
findings.
On March 26, 2019, the Appeals Council denied Lagorio’s request for review
of the ALJ’s decision. As a result, the ALJ’s decision became the Administration’s
final order for purposes of judicial review. 20 C.F.R. § 422.210(a); see also, e.g., Sims
v. Apfel, 530 U.S. 103, 107 (2000). This action followed.
DISCUSSION
The sole issue on judicial review is whether the ALJ relied on substantial
evidence and applied the correct legal standard in finding that Lagorio engaged in
substantial gainful activity during 1999 and/or 2000. The ALJ correctly found that
Lagorio earned more than the threshold $700 per month during months falling
between July 1999 through December 2000. Admin. Rec. at 18. As noted, this
6The ALJ’s opinion contains no discussion of whether Lagorio’s employment at Stonyfield could have constituted two discrete unsuccessful work attempts under 20 C.F.R. § 404.1574(c)(1). See id. at 16-19. The opinion also contains no discussion of whether, in light of the conditions of his employment, Lagorio’s jobs at Stonyfield were sufficient under 20 C.F.R. § 404.1573(c) to establish his capacity to engage in substantial gainful activity. See id.
9 finding gives rise to a rebuttable presumption that Lagorio had the capacity to
engage in substantial gainful activity, see 20 C.F.R. § 404.1574(b)(2), and therefore
was not continuously disabled between the age of 22 and his application filing date,
see Maloney, 2006 WL 1134925 at *2. However, Lagorio offered arguments and
supporting evidence that his employment at Stonyfield could have constituted two
discrete unsuccessful work attempts, or alternatively that, due to special
circumstances in the terms and conditions of his employment, his employment did
not establish his capacity for substantial gainful activity. The ALJ failed to address
or consider Lagorio’s arguments that his earnings did not, under the circumstances,
establish his capacity to engage in substantial gainful activity. The ALJ also failed
to consider some of the material evidence of record. As discussed below, these
failures constitute error warranting reversal and remand for further proceedings.
The court first addresses the ALJ’s failure to address two material legal
questions.
I. The ALJ Failed to Consider Whether Lagorio’s Jobs at Stonyfield Constituted Unsuccessful Work Attempts and Whether Lagorio Worked Under Special Conditions
The ALJ committed reversible error by failing to consider two legal questions
material to Lagorio’s entitlement to benefits. Each of these questions bears directly
on whether Lagorio’s earnings in 1999 and 2000 established his capacity for
substantial gainful activity.
10 First, the ALJ did not consider whether Lagorio’s jobs at Stonyfield
constituted unsuccessful work attempts. The ALJ considered Lagorio’s testimony
that he worked for Stonyfield as a packer for approximately three months beginning
in December 1999 and subsequently as a forklift operator for approximately four
months. Id. at 143-146, 154. However, Lagorio offered further testimony regarding
his employment at Stonyfield that the ALJ did not address in his opinion. In
addition to testifying that he worked in each position for less than six months,
Lagorio also testified to an intervening period of approximately one to one and a
half months between his two jobs at Stonyfield (during which time he pursued and
obtained a certification required for the forklift operator position). Id. at 74-75, 146.
He further testified to leaving both jobs due to his impairments. Id. at 74, 143-145.
However, he did not offer testimony as to whether he received any form of
compensation from Stonyfield during the interval between the two jobs.7
A period of employment of less than six months is treated as an unsuccessful
work attempt if the claimant’s impairments caused the claimant to stop working
and the claimant was out of work for at least 30 consecutive days both before and
after the period of employment. 20 C.F.R. § 404.1574(c). Although the record leaves
some material questions unanswered, if Lagorio’s testimony were credited it would
support the conclusion that each of the Stonyfield jobs was an unsuccessful work
7 The ALJ did not ask Lagorio any questions at the hearing regarding the
interval between the two jobs. Lagorio’s counsel likewise did not elicit testimony bearing on whether Lagorio was entirely out of work for at least thirty days between working as a packer and as a forklift operator.
11 attempt. The ALJ’s failure to address the potential applicability of Section
404.1574(c) is therefore reversible error. See Mooney v. Shalala, 889 F. Supp. 27, 33
(D.N.H. 1994); Maloney, 2006 WL 1134925, at *6; 20 C.F.R. § 404.1574(c).
The second material legal question that the ALJ failed to consider also bears
directly on Lagorio’s capacity for substantial gainful activity. Specifically, the ALJ
failed to consider whether Lagorio worked under special conditions at Stonyfield.
He also failed to consider whether, in light of those conditions, his earnings do not
establish his capacity for substantial gainful activity. Lagorio offered testimony
regarding the conditions under which he worked at Stonyfield. Admin. Rec. at 74-
75, 143-154. In brief, Lagorio testified to requiring and receiving special assistance
from other employees in performing his job duties, requiring and taking frequent
rest breaks, and being held to a lower standard of productivity than other
employees. Id. Each of these accommodations constitutes a “special condition,” the
presence of which can indicate that a work effort does not establish capacity for
substantial gainful activity. 20 C.F.R. § 404.1573(c). Pursuant to Section
404.1573(c), the ALJ was therefore obliged to consider whether, in light of these
special conditions, Lagorio’s employment at Stonyfield did not foreclose his
eligibility for child’s disability benefits. See id. The ALJ’s failure to consider that
question is also reversible error. See Mooney, 889 F. Supp. at 33; Maloney, 2006 WL
1134925, at *6; 20 C.F.R. § 404.1573(c).
12 II. The ALJ Disregarded Material Evidence Bearing on Lagorio’s Employment at Stonyfield
In addition to the ALJ’s failure to consider Lagorio’s arguments and evidence
on the question of substantial gainful activity, the ALJ disregarded other material
evidence in the record. As noted, the ALJ’s substantial gainful activity
determination was premised solely on the information contained in the Earnings
Summary and on limited portions of Lagorio’s hearing testimony. Admin. Rec. at 18.
However, as discussed below, the record contains additional evidence material to
Lagorio’s earnings in 1999 and 2000.
The first body of evidence the ALJ disregarded bears on the dates of Lagorio’s
employment at Stonyfield. The ALJ found that Lagorio worked for Stonyfield “from
December 1999 to June 2000, for a total of seven months.” Admin. Rec. at 18. That
finding appears to be an inference derived from three of Lagorio’s statements made
at the hearing before the ALJ: (1) that his employment at Stonyfield began in
December 1999, (2) that he worked for Stonyfield as a packer for approximately
three months, and (3) that he subsequently worked for Stonyfield as a forklift
operator for approximately four months. Id. at 143-146, 154. However, in drawing
the inference that Lagorio worked for Stonyfield “from December 1999 to June 2000,
for a total of seven months,” the ALJ necessarily disregarded Lagorio’s affidavit, in
which Lagorio specified that he worked for Stonyfield through September 12, 2000.
Id. at 75. The ALJ also necessarily assumed that Lagorio’s three-month stint as a
packer and four-month stint as a forklift operator were consecutive; that
assumption likewise fails to take into account Lagorio’s affidavit, which specifies
13 that the packer job ended in early March 2000 and that the forklift operator job did
not begin until early April 2000. Id. at 74-75. The ALJ’s assumption similarly fails
to take into account Lagorio’s hearing testimony that he spent a period of “a month,
month and a half” pursuing a certification between working the two jobs. Id. at 146.
The ALJ also disregarded bodies of evidence bearing on the circumstances,
terms, and conditions of Lagorio’s employment at Stonyfield. The ALJ’s opinion
discusses Lagorio’s annual earnings in 1999 and 2000 as reported in the Earnings
Summary and estimates the monthly income attributable to his employment at
Stonyfield. To be sure, this discussion was not necessary to support the ALJ’s
conclusion that Lagorio’s total compensation in 1999 and 2000 exceeded the
substantial gainful activity threshold. However, the ALJ’s discussion does reveal
that the ALJ disregarded material evidence while considering the record.
A few observations drawn from the record will illustrate the point. First, in
discussing the possible total amount of Lagorio’s earnings in December 1999, the
ALJ “[a]ssum[ed] that [Lagorio] worked [for Stonyfield] all of the month of
December 1999.” Id. at 18. But the Work Activity Report states that Lagorio did not
begin working for Stonyfield until December 27, 1999. Id. at 29. He thus worked at
Stonyfield for, at most, five days of December 1999.
Second, based on his assumption that Lagorio worked for Stonyfield for the
entire month of December 1999, the ALJ calculated that Lagorio “would have made
at most $1,638.00” in that month. However, the Work Activity Report specifies that
Lagorio received $450.55 from Stonyfield as compensation in December 1999. Id.
14 Had the ALJ considered the Work Activity Report, he would not have needed to try
to calculate the amount of Lagorio’s December 1999 earnings.
Third, the ALJ noted an apparent discrepancy between his own calculations
of Lagorio’s likely earnings and the annual compensation totals listed in the
Earnings Report. Id. at 18. Specifically, the ALJ calculated that Lagorio’s earnings
from his employment at Stonyfield should have totaled “no more than $11,970.00,”
while the Earnings Summary reflects total earnings of $5,266.87 in 1999 and
$26,247.41 in 2000. The ALJ appears to have been unable to account for this
apparent discrepancy. Id. However, the discrepancy is at least partially explained
by information contained in the Work Activity Report. Specifically, the Report
states that Lagorio worked less than part time for D.M. Kerr Associates for ten
months of 1999 before working for Stonyfield, id. at 29, and that after he left
Stonyfield’s employ, Lagorio continued receiving compensation from Stonyfield in
the form of disability pay, profit-sharing, and a vacation-time payout, id. at 30. The
ALJ’s failure to acknowledge these reported sources of income in connection with
his discussion of Lagorio’s earnings illustrates that the ALJ failed to consider
information contained in the Work Activity Report.
When a claimant offers material evidence, the ALJ is required to consider it.
See, e.g., Petrucci v. Barnhart, Case No. 01-10682-DPW, 2003 WL 21715851, at *5
(D. Mass. July 23, 2003). The ALJ’s failure to do so here constitutes clear error
warranting reversal of the Commissioner’s decision.
15 III. The Evidentiary Record is Undeveloped
The record here is inadequate to permit a reasoned evaluation of the
substantial gainful activity issue. Specifically, the record leaves unanswered
questions regarding the exact dates of Lagorio’s employment at Stonyfield, whether
Lagorio was entirely off work between his stints as a packer and as a forklift
operator, and, if so, for how long he was off work. As discussed above, these
unanswered questions are directly material to evaluation of whether Lagorio’s
employment at Stonyfield constituted two unsuccessful work attempts. 20 C.F.R. §
404.1574(c).
An ALJ has a duty to develop the evidentiary record sufficiently to permit a
reasoned evaluation of the issues presented by a claim for benefits. See Heggarty v.
Sullivan, 947 F.2d 990, 997 (1st Cir. 1991); see also Sims v. Apfel, 530 U.S. 103,
110–111 (2000) (“Social Security proceedings are inquisitorial rather than
adversarial . . . [and] [i]t is the ALJ’s duty to investigate the facts and develop the
arguments both for and against granting benefits”); 20 C.F.R. § 404.944. This
responsibility exists even as to issues on which the claimant bears the burden of
proof, see Carrillo Marin v. Sec’y of Health & Human Servs., 758 F.2d 14, 17 (1st
Cir. 1985), and applies “regardless of whether the claimant is represented by
counsel,” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). The ALJ’s duty to
develop the record applies in the context of the substantial gainful activity
presumption. See Mooney, 889 F. Supp. at 33 (“when income establishes a
presumption that one is engaged in substantial gainful activity, the presumption
16 does not relieve an ALJ of the duty to develop the record fully and fairly”) (citations,
internal modifications, and quotation marks omitted).
To warrant reversal, however, an ALJ’s failure to develop the record must
have caused the claimant material prejudice. See Faria v. Comm’r of Soc. Sec., 187
F.3d 621 (1st Cir. 1998). The claimant bears the burden to establish such prejudice.
See id. In addition, the ALJ’s duty to develop the evidence only arises where the
record contains sufficient facts to alert the ALJ that further evidentiary
development is necessary.8 See May v. Bowen, 663 F. Supp. 388, 394 (D. Me. 1987).
Because the record suggests the possibility that Lagorio’s employment at
Stonyfield constituted two unsuccessful work attempts, the ALJ was under a duty
to investigate the material facts and develop the record adequately. See Sims, 530
U.S. at 110-111; Currier v. Sec’y of Health, Educ. & Welfare, 612 F.2d 594, 598 (1st
Cir. 1980) (citing Miranda v. Sec’y of Health, Educ. & Welfare, 514 F.2d 996, 998
(1st Cir. 1975)). However, the court declines to fault the ALJ for failing to seek
further documentary evidence or to elicit relevant testimony at the hearing. First,
although Lagorio is unrepresented in this action, he was represented by counsel at
8 Here, the record contained facts sufficient to alert the ALJ that the evidence was materially incomplete, and that the evidentiary gaps could be filled without undue effort. At the hearing before the ALJ, Lagorio testified that he contacted Stonyfield to request information about his past employment. Admin. Rec. at 153. Stonyfield advised him that the only records they still retained regarding his employment were tax records, which Lagorio did not request prior to the hearing. Id. However, the tax records would presumably have contained information bearing on the material questions regarding the dates of Lagorio’s employment and whether he received compensation from Stonyfield between his jobs as a packer and as a forklift operator. The ALJ did not request that Lagorio obtain the employment records after hearing Lagorio’s testimony. Id.
17 the hearing. “When a claimant is represented, the ALJ ‘should ordinarily be entitled
to rely on claimant’s counsel to structure and present the claimant’s case in a way
that claimant’s claims are adequately explored.’” Faria, 187 F.3d at 621 (quoting
Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997)). “[A]n ALJ is entitled to
presume that claimant represented by counsel in the administrative hearings has
made his best case.” Id. (quoting Sears v. Bowen, 840 F.2d 394, 402 (7th Cir. 1988)).
The ALJ did not err in presuming that Lagorio’s counsel would present all favorable
material evidence as to a legal question on which Lagorio bore the burden of proof.
Second, Lagorio has made no effort to demonstrate that he was prejudiced by
the ALJ’s failure to develop the record. In particular, Lagorio has not offered any
evidence to establish that, had the ALJ requested Stonyfield’s employment records,
those records would actually have supported his unsuccessful work attempt
arguments.
While the undeveloped record is not a basis for reversal, the ALJ may
consider filling the identified evidentiary gaps on remand.
IV. Summary
The record establishes, and the ALJ correctly found, that Lagorio earned
above the minimum earnings threshold for substantial gainful activity during the
period from December 1999 through some time in 2000. However, Lagorio’s
earnings give rise to only a rebuttable presumption that he had the capacity to
engage in substantial gainful activity. See 20 C.F.R. § 404.1574(a). Lagorio was
18 entitled to produce evidence to demonstrate that, despite his earnings, he lacked
that capacity. He did in fact produce a considerable body of material evidence.
Although the ALJ was not required to draw any particular conclusion from
Lagorio’s evidence, he was obliged to consider it and to address the material facts
and law in his opinion.
For these reasons, the court finds that the ALJ’s decision is not supported by
substantial evidence. The appropriate remedy is remand for further proceedings.
See, e.g., Maloney, 2006 WL 1134925, at *6.
CONCLUSION
For the foregoing reasons, Lagorio’s motion to reverse (doc. no. 9) is granted,
and the Commissioner’s motion to affirm (doc. no. 10) is denied. Pursuant to
sentence four of 42 U.S.C. § 405(g), this matter is remanded to the ALJ for further
proceedings consistent with this order and, if the ALJ deems it appropriate, the
taking of additional evidence and/or testimony. The clerk of the court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
September 30, 2020
cc: Counsel of Record