Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Joseph Lagorio
v. 	Case No. 25-cv-60-LM-AJ
Frank Bisignano, Commissioner,
Social Security Administration
Report and Recommendation
Richard Joseph Lagorio seeks judicial review pursuant to 42
U.S.C. § 405(g) of the Commissioner’s decision, following
remand, denying his application for child’s insurance benefits.
Lagorio’s motion to reverse the Commissioner’s decision and the
Commissioner’s motion to affirm are referred to the undersigned
Magistrate Judge for a report and recommendation. See 28 U.S.C.
§ 636(b)(1)(B). For the reasons that follow, the district judge
should grant the Commissioner’s motion to affirm and deny
Lagorio’s motion to reverse.
Standard of Review
In reviewing a decision of the Commissioner under § 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 Sacilowski v. Saul, 959 F.3d 431, 437 (1st
Cir. 2020). Questions of law are reviewed de novo. Seavey v.
Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The ALJ’s factual
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findings must be affirmed if they are supported by substantial
evidence. Biestek v. Berryhill, 587 U.S. 97, 99 (2019).
Substantial evidence is “more than a mere scintilla” and means
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. at 102-03 (cleaned up).
Background
Lagorio applied to the Social Security Administration for
child’s insurance benefits in 2016, based on a disability due to
a congenital degenerative bone disease, and sought benefits
retroactively to 2008 when his father died. The Commissioner
denied his application, finding that Lagorio engaged in
substantial gainful activity while working for Stonyfield Farm,
Inc. (“Stonyfield”) in 1999 and 2000, which precluded child’s
insurance benefits, and he sought review in this court.1 Lagorio
1 To be eligible for child’s insurance benefits, an adult
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.” Lagorio v. Saul, 565 F. Supp. 3d
210, 214 (D.N.H. 2020) (quoting 42 U.S.C. § 402(d)(1); 20 C.F.R.
§ 404.350). “[D]isability is defined in pertinent part as the
‘inability to engage in any substantial gainful activity” due to
an impairment.’” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).
Therefore, an adult claimant must also show “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.” Id. (internal quotation marks
omitted).
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v. Saul, 19-cv-571-LM-AJ (D.N.H. filed May 29, 2019). The court
concluded that “[t]he record establishes, and the ALJ
[Administrative Law Judge] 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.” Lagorio v. Saul, 565 F. Supp. 3d 210, 221 (D.N.H.
2020) (“Lagorio I”). The court reversed the Commissioner’s
decision and remanded the case, however, because the ALJ failed
to consider whether Lagorio’s work at Stonyfield constituted
unsuccessful work attempts, whether he worked at Stonyfield
under special conditions, and specified evidence in the record –
a Work Activity Report and Lagorio’s affidavit. Id. at 218-222.
The Commissioner moved for reconsideration. In the order
addressing the motion for reconsideration, the court noted that
it had previously found three errors that required reversal and
remand: (1) failure to consider a question of unsuccessful work
attempts for purposes of 20 C.F.R. § 404.1574(c); (2) failure to
consider whether Lagorio’s work took place under special
conditions for purposes of 20 C.F.R. § 404.1573(c); and (3)
disregard of specified evidence in the record. Lagorio v. Saul,
565 F. Supp. 3d 147, 150 (D.N.H. 2021) (“Lagorio II”). The court
concluded that Lagorio’s argument in his objection to
reconsideration about an undeveloped record was untimely raised
and did not demonstrate error. Id. at 151.
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The court agreed with the Commissioner that the ALJ’s error
in failing to consider unsuccessful work attempts was harmless
and not a basis for reversal. Id. The court rejected the
Commissioner’s argument, however, about the second error,
whether Lagorio’s prior work was under special conditions,
concluding the argument was waived because it was not raised in
the Commissioner’s moving papers and, in any case, the
Commissioner’s arguments were unpersuasive. Id. at 153-54. The
court denied the motion for reconsideration and remanded the
case for further proceedings as to “the ALJ’s failure to conduct
a special conditions inquiry under Section 404.1573(c).” Id. at
154.
On remand, the ALJ held a hearing, and Lagorio, who was
represented by counsel, testified. The ALJ issued a decision on
June 28, 2023, again denying Lagorio’s application for child’s
insurance benefits. Doc. no. 5. The ALJ found that Lagorio’s
earnings from 1999 to 2000 exceeded the threshold for
substantial gainful activity. Id. at 18. He considered Work
Activity Report and Lagorio’s affidavit, the evidence that the
court found had been overlooked for purposes of the first
decision. The ALJ concluded that Lagorio did not have an
unsuccessful work attempt during that time. Id. at 19-20.
On the issue of whether Lagorio’s work at Stonyfield under
special conditions, within the meaning of § 404.1573(c), the ALJ
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stated that application of the special conditions exception to
substantial gainful activity was discretionary and that the
regulation did not direct a finding of no substantial gainful
activity even when work was done under special conditions. Doc.
no. 5 at 20. Nevertheless, the ALJ also addressed the
conflicting evidence of Lagorio’s limitations while working at
Stonyfield and found that the record did not show that Lagorio
worked under special conditions.2 The ALJ found that Lagorio
engaged in substantial gainful activity in 2000 and, for that
reason, found that Lagorio was not entitled to child’s insurance
benefits.
Discussion
In his motion to reverse the decision denying him benefits,
Lagorio argues that the ALJ did not follow the court’s order
remanding the case and did not consider all material evidence
presented.3 Specifically, Lagorio contends that the ALJ erred in
2 Because the ALJ did not decline, as a matter of
discretion, to consider whether Lagorio worked at Stonyfield
under special conditions as provided in § 404.1573(c), the court
need not and does not address the legal question that the ALJ
raised.
3 Although Lagorio also mentions that a vocational expert
did not testify at either hearing as to whether his testimony
about his duties at Stonyfield “constituted accommodations or
merely permissible modifications,” he provides no developed
argument to show that the ALJ erred in that regard. Doc. no. 7-1
at 4. The ALJ did not credit Lagorio’s hearing testimony because
it contradicted his prior testimony and prior representations
about his work. For that reason, the nature of the
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refusing to admit as evidence a report following review of his
medical file by an orthopedic surgeon, Frank A. Graf, M.D., and
refusing to allow Dr. Graf to testify at the hearing.4 The
Commissioner moves to affirm the decision, arguing that the ALJ
correctly excluded Dr. Graf’s opinion and properly followed the
court’s remand order.
A. Specified Evidence
As noted above in the background section, the ALJ
considered the specified evidence that the court found had not
been previously considered in making his findings. Lagorio does
not challenge that part of the decision.
B. Dr. Graf’s Report
Dr. Graf states at the beginning of the report that it is
“an analysis of Richard Lagorio and whether he meets the
criteria of listings 1.01 and 1.o4 of the social security
disability listings.” Doc. no. 7-3, at 39. In his summary, Dr.
Graf concluded that Lagorio “fully meets the criteria of listing
1.02 with status post total hip arthroplasty.” Id. at 43. Dr.
Graf also found that Lagorio “fully meets the criteria of
listing 1/04 disorders of the spine with peripheral spinal nerve
accommodations Lagorio described was not a reason he was denied
benefits. Doc. no. 5 at 19.
4 Lagorio submitted Dr. Graf’s review with his motion to
reverse the Commissioner’s decision. See doc. no. 7-3, at 39-43.
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root injury with muscle atrophy and drop foot.” Id. He concluded
that these conditions caused Lagorio to be totally disabled.
The disability listings are part of the five-step analysis
used for the purpose of determining whether an applicant for
social security disability benefits under Title II of the Social
Security Act and supplemental security income under Title XVI is
disabled. Sacilowski, 959 F.3d at 433-34. Lagorio is seeking
child’s insurance benefits under 42 U.S.C. § 402(d)(1) and the
issue in this case is whether Lagorio engaged in substantial
gainful activity after the age of 22. Lagorio has not shown or
even argued that the five-step analysis would apply in this
context. See Lagorio I, 565 F. Supp. 3d at 214 (providing
applicable standard).
During the hearing, Lagorio’s counsel and the ALJ discussed
Dr. Graf’s review, which counsel wanted to add to the record on
Lagorio’s behalf. The ALJ explained that the issue for remand
was determining whether Lagorio had engaged in substantial
gainful activity based on his earnings and work and that Dr.
Graf’s report was not material to that issue. Doc. no. 5 at 29-
30. Counsel agreed that Dr. Graf’s review did not address the
earnings and work issues but argued that the report did address
disability, which was mentioned in the hearing notice. The ALJ
explained that the hearing notice was “canned” and did not
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include the specific issue presented for remand, which was not
disability. Id. at 30.
For purposes of the court’s review, Lagorio argues that the
ALJ’s decision to exclude Dr. Graf’s report and testimony
“effectively prevented [him] from providing any evidence that
would have addressed the issue of SSR 84-25 and the reasons for
[his] discontinuation for work.” Doc. 	no. 7-1 at 4. SSR 84-25,
however, pertains to the issue of an unsuccessful work effort
and “establishes that the Administration will not find that a
claimant stopped working due to his impairments solely based on
the claimant’s own testimony, but rather requires confirmation
in the form of ‘impartial supporting evidence’ from a medical
source or from the claimant's former employer.” 	Lagorio II, 565
F. Supp. 3d at 151 (quoting S.S.R. 84-25, 1984 WL 49799, at *3).
The issue of an unsuccessful work attempt was resolved in
Lagorio II and was not remanded. For that reason, the ALJ
properly excluded Dr. Graf’s report and testimony as immaterial.
Conclusion
For these reasons, the district court should deny Lagorio’s
motion to reverse (doc. no. 7) and grant the Commissioner’s
motion to affirm (doc. no. 9).
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
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R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 12, 2025
cc: 	Counsel of Record
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