UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Earl Willis Guyette, Jr.

v. Civil No. 17-cv-486-LM Opinion No.

Nancy A. Berryhill, Acting Commissioner of Social Security

O R D E R

Earl Guyette seeks judicial review, pursuant to

(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,

(1st Cir. 1999); accord Seavey

v. Barnhart,

(1st Cir. 2001). The court defers to

the Administrative Law Judge’s factual findings as long as they

are supported by substantial evidence.

(g); see

also Fischer v. Colvin,

(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,

(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.”

In determining whether a claimant is disabled for purposes

of social security benefits, the ALJ follows a five-step

sequential analysis.

. The claimant bears

the burden through the first four steps of proving that his

impairments preclude him from working. Purdy,

.

At the fifth step, the Acting Commissioner has the burden of

showing that jobs exist which the claimant can do. Heggarty v.

Sullivan,

(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,

(1st Cir. 2007); Scott v. Berryhill,

No. 18-cv-26-JD,

, 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,

. “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,

, 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,

, at *4 (D.N.H. May 24, 2018); see also

Alcantara,

; Laberge v. Berryhill, 18-cv-257-

JL,

,

, 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,

.

Instead, the ALJ must make the absence of change adequately

clear. Giandomenico,

, 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,

, 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

11