Donald Nutter v. Commissioner of Social Security

2021 DNH 171

• Court: District Court, D. New Hampshire
• Decided: November 4, 2021
• Docket: 20-cv-960-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald Nutter

v. Case No. 20-cv-960-PB Opinion No. 2021 DNH 171 Commissioner of Social Security

MEMORANDUM AND ORDER

Donald Nutter missed the hearing on his application for

social security disability insurance benefits (“DIB”). An

Administrative Law Judge (“ALJ”) later dismissed Nutter’s

application because he could not establish “good cause” for his

absence. Nutter contends that the ALJ’s good cause

determination is not supported by substantial evidence because

the ALJ ignored evidence in the record that Nutter suffers from

mental impairments that caused him to miss the hearing.

I. BACKGROUND

Claiming to suffer from anxiety, depression, and some

physical ailments, Nutter applied for Social Security disability

benefits several years ago. Tr. 24-25. After his initial

application was denied, the Social Security Administration (SSA)

scheduled a hearing at Nutter’s request. Tr. 66.

On the day of the hearing, Francis Jackson, an attorney who

represented Nutter in connection with his application and was initially scheduled to attend the hearing, sent an associate in

his place. Tr. 20. The associate, Kristian Terison, prepared

the appropriate paperwork for Nutter to appoint him as his

representative for the hearing -- Nutter would just have to sign

the document when he arrived. Tr. 20. Unfortunately, Nutter

drove to the wrong Social Security office. Attorney Terison was

present at the start of the hearing, but without either Nutter

or a properly appointed representative present, the hearing was

canceled. Tr. 20.

The ALJ later dismissed Nutter’s case based on a Social

Security Administration regulation that permits such dismissals

if the claimant and his representative have missed a hearing

without “good cause.” See 20 C.F.R. § 404.957(b)(1)(i). Nutter

challenged the ALJ’s decision before the Appeals Council, which

remanded the claim for a hearing before a new ALJ to determine

whether “the claimant had a good reason” for not appearing at

the hearing.

When determining whether an applicant’s failure to attend a

hearing is excused by good cause, an ALJ must consider the

applicant’s “physical, mental, educational or linguistic

limitations.” See 20 C.F.R. § 404.957(b)(2). On remand, Nutter

argued that he missed the hearing because his “mental

impairments” and “cognitive disfunction” led him to misinterpret

2 the hearing notice and travel to the wrong social security

office. Tr. 128.

The ALJ rejected Nutter’s good faith defense without

attempting to analyze how, if at all, his mental impairments

affected his ability to interpret and comply with the hearing

notice. Tr. 21-22. Instead, he concluded that the hearing

notice provided Nutter with a simple instruction and based his

ruling on the opinions of examining psychologist Dr. Robert Su

Prescott and reviewing psychologist Dr. JoAnne Coyle that Nutter

could remember and understand simple instructions. Tr. 21-22.

The Appeals Council summarily affirmed the ALJ’s decision, and

this appeal followed. Tr. 1-2.

II. STANDARD OF REVIEW

I may review the pleadings submitted by the parties and the

administrative record and enter a judgment affirming, modifying,

or reversing the “final decision” of the Commissioner. See 42

U.S.C. § 405(g). That review is limited, however, “to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.” Ward

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

defer to the ALJ’s findings of fact so long as those findings

are supported by substantial evidence. Id. Substantial

evidence exists “if a reasonable mind, reviewing the evidence in

3 the record as a whole, could accept it as adequate to support

[the ALJ’s] conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d

218, 222 (1st Cir. 1981)).

“The ALJ is not required to mention every piece of evidence

but must provide an ‘accurate and logical bridge’ between the

evidence and his conclusions.” Knox v. Astrue, 327 F. App’x

652, 656 (7th Cir. 2009) (quoting Craft v. Astrue, 539 F.3d 668,

673 (7th Cir. 2008)). If the ALJ’s opinion was “derived by

ignoring evidence, misapplying the law, or judging matters

entrusted to experts,” it is not supported by substantial

evidence. Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020)

(quoting Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)).

III. ANALYSIS

Nutter argues that the ALJ’s decision is not supported by

substantial evidence because it ignores essential evidence in

the record that bears on his claim that he missed the hearing

because of his mental impairments. I agree.

Dr. Su Prescott and Dr. Coyle both noted that Nutter

suffers from Post Traumatic Stress Disorder, Major Depressive

Disorder, and Opioid Use Disorder. Tr. 31, 164. Although the

ALJ adopted Dr. Su Prescott and Dr. Coyle’s opinions that Nutter

4 could remember and understand simple instructions, he failed to

discuss Nutter’s mental impairments in his dismissal order. Nor

did he comment on Dr. Su Prescott’s specific observation in the

first sentence of his report that “Mr. Nutter may well forget or

miss appointments without reminding.” See Tr. 159. These

omissions are particularly troubling given Nutter’s statements

to Dr. Su Prescott that he has difficulty attending appointments

and “has missed some because he has forgotten them” and

“sometimes he has missed them as he has been too anxious to go

out.” Tr. 162. Dr. Su Prescott’s report was drafted long

before Nutter’s missed hearing, tempering any potential

objection to its seemingly striking relevance to the matter at

hand. Because the ALJ failed to discuss this evidence in his

dismissal order, I can only speculate about how it could have

affected his analysis. 1

As I have explained, an ALJ’s decision that is “derived by

ignoring evidence” is “not conclusive.” Sacilowski, 959 F.3d at

437. Here, the ALJ ignored or misstated considerable evidence

1 The ALJ also appears to have based his dismissal order on a misreading of the record. In rejecting Nutter’s good faith defense, the ALJ criticized Nutter’s counsel for claiming that Nutter had misidentified the day and year of his meeting with Dr. Su Prescott when, “it was only the year he stated incorrectly.” As Nutter’s counsel notes, however, the ALJ’s assertion is incorrect because Dr. Su Prescott’s report states that Nutter misidentified both the year and day of the month of his meeting. Tr. 162.

5 in the record. This evidence highlighted how Nutter’s anxiety

and cognitive issues make leaving his house difficult for him,

to the point that he misses his appointments. Whether Nutter

can remember simple instructions or locations does not undercut

the logical inference that his anxiety -- and not just his

memory -- interfered with his ability to think clearly about

which SSA office he had to visit. Nutter has “panic symptoms or

attacks . . . when he has to go out,” which arguably interact

with his documented memory issues. Tr. 160. The ALJ’s failure

to address this evidence -- despite it being continually noted

in Dr. Su Prescott’s report and uncontradicted by Dr. Coyle --

is an apparent oversight that undermines the Commissioner’s

contention that the ALJ’s decision is supported by substantial

evidence.

The Commissioner’s arguments in response are unpersuasive.

In Arthur F. v. Comm’r of Soc. Sec., which the Commissioner

points me to, the claimant filed a late request to review an

ALJ’s decision. See No. 1:19-CV-1187, 2021 WL 950634, at *2

(C.D. Ill. Mar. 12, 2021). The claimant then argued that he had

good cause based on his memory impairments. Id. But the

district court disagreed because there was insufficient evidence

to support the claimant’s assertion. Id. Here, as I have

documented above, the record contains significant evidence for

an ALJ to consider when determining “good cause.” Moreover,

6 Nutter does not argue, unlike the claimant in Arthur, that he

just forgot about the hearing; he states that “a number of

mental impairments, including . . . anxiety . . . were the cause

of his” absence. Mot. to Reverse, Doc. No. 8 at 4. Nutter

claims to have thought that the hearing was at a different

office, but he does not say that he just forgot where to go.

Hearings are understandably stressful for claimants and

predictably so for Nutter, who has arguably demonstrated how his

anxiety interferes with his ability to successfully leave the

house. Nutter’s assertion of “good cause” is therefore much

more forceful than the claimant in Arthur.

The Commissioner’s citation to Neuzil is similarly

unpersuasive. There, the claimant argued that she had good

cause for arriving at the hearing late after writing the address

down incorrectly, getting lost, and not finding anybody to give

her directions. 2013 WL 2445212, at *6. The magistrate judge

explicitly noted that there was no evidence “to support the

conclusion that any of [the claimant’s] alleged mental issues

had anything whatsoever to do with her failure to appear at the

hearing.” Id. at *6 n.10. Again, here there is evidence to

support Nutter’s good cause claim -- evidence that the ALJ

failed to address in his decision. Neuzil is not compelling.

Finally, the Commissioner makes hay out of Attorney

Jackson’s decision to send his associate Terison to meet Nutter

7 and sign the appropriate paperwork at the hearing office. The

Commissioner is correct that Attorney Terison could have

appeared on Nutter’s behalf if he had prepared the paperwork in

advance. But this observation does not affect my evaluation of

the ALJ’s good cause determination. The ALJ had to consider

“any . . . mental . . . limitations . . . which [Nutter]” had.

See §§ 416.1457(b)(2), 404.957(b)(2). The way Nutter’s

representatives independently prepared for the hearing is beside

the point.

At bottom, the ALJ’s decision ignores evidence of Nutter’s

mental impairments -- the very same issues that prompted his

application for disability benefits. See Smith v. Berryhill,

No. C17-647 RAJ, 2018 WL 953354, at *5 (W.D. Wash. Feb. 20,

2018) (“It would be a tragic Catch-22 if a person’s disability

led to forfeiture of his claim forevermore.”). Evidence of

Nutter’s mental limitations, coupled with his cognitive

impairments could support a finding that he had good cause for

missing his hearing. If the ALJ believed that it did not, he

needed to explain the basis for his conclusion and not ignore

the evidence altogether.

IV. CONCLUSION

Nutter’s motion to reverse (Doc. No. 8) is granted to the

extent that the ALJ’s decision is vacated and the case is

8 remanded to the Commissioner for further proceedings, under

sentence four of 42 U.S.C. § 405(g).

On remand, the Commissioner must address, consistent with

§§ 416.1457(b)(2) and 404.957(b)(2), whether Nutter’s “mental

. . . limitations” impacted his ability to arrive at his hearing

on time. The Commissioner should specifically consider the

undisputed record evidence of Nutter’s anxiety and cognitive

limitations -- including Dr. Su Prescott’s acknowledgment that

Nutter may miss appointments or not leave his house altogether.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

November 4, 2021

cc: Alexandra M. Jackson, Esq. Rami M. Vanegas, Esq.