UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Earl Willis Guyette, Jr.
v. Civil No. 17-cv-486-LM Opinion No. 2019 DNH 037 Nancy A. Berryhill, Acting Commissioner of Social Security
O R D E R
Earl Guyette seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
supplemental security income under Title XVI. Guyette moves to
reverse the Acting Commissioner’s decision, and the Acting
Commissioner moves to affirm. For the reasons discussed below,
the decision of the Acting Commissioner is reversed, and the
case is remanded to the Acting Commissioner for further
proceedings.
STANDARD OF REVIEW
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the [Administrative Law Judge] 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 Administrative Law Judge’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 benchmark, a preponderance
of evidence is not. Purdy v. Berryhill, 887 F.3d 7, 13 (1st
Cir. 2018) (internal 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.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. § 416.920. The claimant bears
the burden through the first four steps of proving that his
impairments preclude him from working. Purdy, 887 F.3d at 9.
At the fifth step, the Acting Commissioner has the burden of
showing that jobs exist which the claimant can do. Heggarty v.
Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).
2 BACKGROUND
A detailed statement of the facts can be found in the
parties’ Joint Statement of Material Facts (doc. no. 13). The
court provides a brief summary of the case here.
Guyette applied for supplemental security income on March
6, 2015, alleging a disability onset date of September 29, 2014,
when he was 33 years old. He alleged a disability due to
depression, anxiety, attention deficit disorder (“ADD”),
hyperactivity disorder (“HD”), and post-traumatic stress
disorder (“PTSD”). At the time of his alleged disability onset
date, he had obtained his GED, and had worked as a mechanic, a
roofer, an HVAC installer, a painter, a factory worker, a
nursing home worker, and a laundromat worker.
I. Medical Evidence
The medical evidence in the administrative record appears
to start with Guyette’s emergency treatment and subsequent
admission at Elliot Hospital on November 22, 2004, because of an
overdose. The report notes that Guyette’s infant son had died a
month before of SIDS. He was diagnosed at that time with an
adjustment disorder, substance abuse, and a history of ADD.
Guyette was treated at Concord Hospital in June 2006 following
another suicide attempt.
3 The parties’ summary of the medical evidence begins with
Guyette’s appointment with his primary care physician, Dr. Rory
Richardson, on September 29, 2014. Guyette was seen because of
“worsening mood.” He reported that he had been fired from his
job because of his poor attitude. He reported having trouble
sleeping. He was crying and emotional during the interview.
Dr. Richardson noted depression and added medication. He also
recommended counseling. Dr. Richardson continued to see Guyette
during the relevant period.
Ann Pike, Ph.D., did a consultative examination in January
2015. She found that Guyette had hyper motor activity, no
evidence of a thought disorder, rational speech, and good eye
contact although he was tearful. She also found that he was
depressed with flashbacks and intrusive memories, was properly
oriented, had average intelligence, and impaired memory.
On July 6, 2015, JoAnne Coyle, Ph.D., a state agency
psychologist, found that Guyette could understand and remember
simple instructions, could sustain attention and concentration
for simple tasks, and maintain effort for two-hour periods in a
work day with some degree of self-pacing. He could have
infrequent and brief interaction with the public, participate in
typical interactions with co-workers and supervisors while doing
simple nonsocial tasks, and adapt to minor changes in routine.
4 From July 2015 to July 2016, Guyette received counseling at
The Mental Health Center of Greater Manchester with Laima Niemi,
M.Ed., and Amanda Hapenny, ARPN. The records show that Guyette
was oriented, but his mood was anxious and depressed, and his
affect was restricted. He was late and missed appointments and
forgot to bring or complete his assignments for his
appointments.
Guyette also continued regular appointments with Dr.
Richardson. Guyette stopped his medications, continued to smoke
marijuana, and became more anxious. Dr. Richardson encouraged
Guyette to continue with counseling and to see a psychiatrist.
Dr. Richardson completed a Medical Source Statement of Ability
to Do Work-Related Activities on August 15, 2016. He found that
Guyette had persistent depression despite treatment and had
marked limitations in his ability to do work-related activities
such as make judgments, carry out complex instructions, and
respond appropriately.
II. Procedural History
A hearing before an ALJ was held on September 1, 2016.
Guyette testified about his depression stemming from his son’s
death and his limitations caused by PTSD, ADD, and HD. A
5 vocational expert testified about representative jobs in
response to the ALJ’s residual functional capacity assessment.
The ALJ issued his decision on November 14, 2016, finding
that Guyette was not disabled. In support, the ALJ found that
Guyette retained the functional capacity to do work at all
exertional levels but was limited to simple and unskilled work,
maintaining attention and concentration for two-hour periods
through a work day with some self-pacing, infrequent interaction
with the public, and not requiring tandem tasks with co-workers
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Earl Willis Guyette, Jr.
v. Civil No. 17-cv-486-LM Opinion No. 2019 DNH 037 Nancy A. Berryhill, Acting Commissioner of Social Security
O R D E R
Earl Guyette seeks judicial review, pursuant to 42 U.S.C.
§ 405(g), of the decision of the Acting Commissioner of the
Social Security Administration, denying his application for
supplemental security income under Title XVI. Guyette moves to
reverse the Acting Commissioner’s decision, and the Acting
Commissioner moves to affirm. For the reasons discussed below,
the decision of the Acting Commissioner is reversed, and the
case is remanded to the Acting Commissioner for further
proceedings.
STANDARD OF REVIEW
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the [Administrative Law Judge] 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 Administrative Law Judge’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 benchmark, a preponderance
of evidence is not. Purdy v. Berryhill, 887 F.3d 7, 13 (1st
Cir. 2018) (internal 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.
In determining whether a claimant is disabled for purposes
of social security benefits, the ALJ follows a five-step
sequential analysis. 20 C.F.R. § 416.920. The claimant bears
the burden through the first four steps of proving that his
impairments preclude him from working. Purdy, 887 F.3d at 9.
At the fifth step, the Acting Commissioner has the burden of
showing that jobs exist which the claimant can do. Heggarty v.
Sullivan, 947 F.2d 990, 995 (1st Cir. 1991).
2 BACKGROUND
A detailed statement of the facts can be found in the
parties’ Joint Statement of Material Facts (doc. no. 13). The
court provides a brief summary of the case here.
Guyette applied for supplemental security income on March
6, 2015, alleging a disability onset date of September 29, 2014,
when he was 33 years old. He alleged a disability due to
depression, anxiety, attention deficit disorder (“ADD”),
hyperactivity disorder (“HD”), and post-traumatic stress
disorder (“PTSD”). At the time of his alleged disability onset
date, he had obtained his GED, and had worked as a mechanic, a
roofer, an HVAC installer, a painter, a factory worker, a
nursing home worker, and a laundromat worker.
I. Medical Evidence
The medical evidence in the administrative record appears
to start with Guyette’s emergency treatment and subsequent
admission at Elliot Hospital on November 22, 2004, because of an
overdose. The report notes that Guyette’s infant son had died a
month before of SIDS. He was diagnosed at that time with an
adjustment disorder, substance abuse, and a history of ADD.
Guyette was treated at Concord Hospital in June 2006 following
another suicide attempt.
3 The parties’ summary of the medical evidence begins with
Guyette’s appointment with his primary care physician, Dr. Rory
Richardson, on September 29, 2014. Guyette was seen because of
“worsening mood.” He reported that he had been fired from his
job because of his poor attitude. He reported having trouble
sleeping. He was crying and emotional during the interview.
Dr. Richardson noted depression and added medication. He also
recommended counseling. Dr. Richardson continued to see Guyette
during the relevant period.
Ann Pike, Ph.D., did a consultative examination in January
2015. She found that Guyette had hyper motor activity, no
evidence of a thought disorder, rational speech, and good eye
contact although he was tearful. She also found that he was
depressed with flashbacks and intrusive memories, was properly
oriented, had average intelligence, and impaired memory.
On July 6, 2015, JoAnne Coyle, Ph.D., a state agency
psychologist, found that Guyette could understand and remember
simple instructions, could sustain attention and concentration
for simple tasks, and maintain effort for two-hour periods in a
work day with some degree of self-pacing. He could have
infrequent and brief interaction with the public, participate in
typical interactions with co-workers and supervisors while doing
simple nonsocial tasks, and adapt to minor changes in routine.
4 From July 2015 to July 2016, Guyette received counseling at
The Mental Health Center of Greater Manchester with Laima Niemi,
M.Ed., and Amanda Hapenny, ARPN. The records show that Guyette
was oriented, but his mood was anxious and depressed, and his
affect was restricted. He was late and missed appointments and
forgot to bring or complete his assignments for his
appointments.
Guyette also continued regular appointments with Dr.
Richardson. Guyette stopped his medications, continued to smoke
marijuana, and became more anxious. Dr. Richardson encouraged
Guyette to continue with counseling and to see a psychiatrist.
Dr. Richardson completed a Medical Source Statement of Ability
to Do Work-Related Activities on August 15, 2016. He found that
Guyette had persistent depression despite treatment and had
marked limitations in his ability to do work-related activities
such as make judgments, carry out complex instructions, and
respond appropriately.
II. Procedural History
A hearing before an ALJ was held on September 1, 2016.
Guyette testified about his depression stemming from his son’s
death and his limitations caused by PTSD, ADD, and HD. A
5 vocational expert testified about representative jobs in
response to the ALJ’s residual functional capacity assessment.
The ALJ issued his decision on November 14, 2016, finding
that Guyette was not disabled. In support, the ALJ found that
Guyette retained the functional capacity to do work at all
exertional levels but was limited to simple and unskilled work,
maintaining attention and concentration for two-hour periods
through a work day with some self-pacing, infrequent interaction
with the public, and not requiring tandem tasks with co-workers
and supervisors. Based on that assessment and the vocational
expert’s testimony, the ALJ found at Step Five that there were
jobs Guyette could do. The Appeals Council denied review,
making the ALJ’s decision the Acting Commissioner’s final
decision. This action followed.
DISCUSSION
Guyette moves to reverse the Acting Commissioner’s decision
on the grounds that the ALJ erred in giving great weight to Dr.
Coyle’s opinion and in failing to give adequate reasons for
rejecting Dr. Richardson’s opinion. The Acting Commissioner
moves to affirm, arguing that no error occurred. Because the
ALJ erred in his assessment of Dr. Coyle’s opinion, the matter
must be reversed and remanded for further proceedings.
6 When a state agency consultant provides an opinion based on
a “significantly incomplete record,” that opinion cannot be
accorded “significant weight” or provide substantial evidence to
support a residual functional capacity assessment. Alcantara v.
Astrue, 257 F. App’x 19, 21 (1st Cir. 2007); Scott v. Berryhill,
No. 18-cv-26-JD, 2018 WL 4328873, at *2 (D.N.H. Sept. 11, 2018).
The record reviewed by a state agency consultant is
significantly incomplete if the evidence added after the
consultant’s review materially changed the record. Alcantara,
257 F. App’x at 334. “The record remains materially unchanged
where the new evidence either reveals no greater limitations or
is arguably consistent with the consultant’s assessment.”
Giandomenico v. U.S. Soc. Sec. Admin., 16-cv-506-PB, 2017 WL
5484657, at *4 (D.N.H. Nov. 15, 2017).
“The ALJ bears the burden of determining and explaining
whether missing evidence is material to assessing the claimant’s
limitations.”1 Avery v. Acting Comm’r, Soc. Sec. Admin., 17-cv-
443-JD, 2018 WL 2376507, at *4 (D.N.H. May 24, 2018); see also
Alcantara, 257 F. App’x at 334; Laberge v. Berryhill, 18-cv-257-
JL, 2018 DNH 260, 2018 WL 6819328, at *8 (D.N.H. Dec. 28, 2018).
It is insufficient for the ALJ to simply state that the record
1 The Acting Commissioner mistakenly put the burden on Guyette to show that the later evidence demonstrated greater limitations in his functional capacity.
7 was not materially changed. Alcantara, 257 F. App’x at 334.
Instead, the ALJ must make the absence of change adequately
clear. Giandomenico, 2017 WL 5484657, at *4.
In this case, the ALJ wrote: “Evidence submitted after Dr.
Coyle gave her opinion does not warrant a change in the weight
afforded to her opinion, as the record, as a whole, as well as
the claimant’s mental status exams and activities of daily
living supports [sic] her opinion.” Doc. 6-2, at 32. As
examples, the ALJ stated that Guyette had demonstrated the
ability to keep appointments, to shop, and to care for his
girlfriend’s child. The ALJ, however, did not address the
medical evidence in the record that post-dated Dr. Coyle’s
opinion or explain why that evidence did not show a material
change in Guyette’s limitations.
For example, the ALJ did not address the records from The
Mental Health Center of Greater Manchester where Guyette
received counseling for a year after Dr. Coyle provided her
opinion. While the session notes indicate that Guyette was
oriented and had other normal indicia, they also indicate that
his mood was anxious and depressed and his affect was
restricted. He also reported increased episodes of anxiety.
Importantly, compared to the ALJ’s statement, the counseling
records show that Guyette was late to multiple appointments,
8 missed one appointment, and forgot to bring or complete his
assignments at times. At one session, Guyette stated that he
was continually missing appointments despite his efforts to
write them down.2 Those circumstances undermine one of the
grounds the ALJ cited to show that there was no material change
in the record after Dr. Coyle’s opinion.
Although the failure to address these records is a
sufficient basis for remand, the court notes that even when the
ALJ addressed opinion evidence that post-dated Dr. Coyle’s
opinion, he failed to adequately explain why that evidence did
not show a material change in Guyette’s limitations. In August
2016, approximately one year after Dr. Coyle issued her opinion,
Dr. Richardson found that Guyette had marked limitations in
work-related functions. His treatment notes also document
continuing and additional issues and that Dr. Richardson
encouraged Guyette to seek psychiatric treatment. The ALJ
discounted Dr. Richardson’s opinion in part because Dr.
Richardson was not a psychiatrist and because he found the
opinion was inconsistent with Dr. Coyle’s opinion. But Dr.
Coyle also is not a psychiatrist, and the fact that Dr.
Richardson’s opinion contradicts Dr. Coyle’s opinion is not an
2 In addition, the ALJ noted in the decision that Guyette was inconsistent in attending AA/NA meetings.
9 adequate explanation for why the record remained materially
unchanged. If anything, that inconsistency demonstrates the
opposite.
In summary, the ALJ either ignored or failed to adequately
address medical evidence that was favorable to Guyette’s claim
and which post-dated Dr. Coyle’s opinion. Thus, the ALJ failed
to carry his burden to determine and explain whether that
evidence materially changed the record on which Dr. Coyle’s
opinion is based. See Avery, 2018 WL 2376507, at *4. As a
result, the ALJ could not rely on Dr. Coyle’s opinion, as he
did, to provide substantial evidence in support of the residual
functional capacity assessment. In this way, the ALJ’s decision
lacks a properly-supported residual functional capacity
assessment. Such an assessment is necessary to determine
whether Guyette was disabled. Thus, the decision must be
reversed.
CONCLUSION
For the foregoing reasons, Guyette’s motion to reverse
(doc. no. 10) is granted, and the Acting Commissioner’s motion
to affirm (doc. no. 11) is denied.
10 The case is remanded pursuant to Sentence Four of § 405(g)
for further proceedings. The clerk of court shall enter
judgment accordingly and close the case.
SO ORDERED
______________________________ Landya McCafferty United States District Judge
March 14, 2019
cc: Counsel of Record