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Hughes v. Berryhill

United States District Court, D. New Hampshire

February 8, 2018

Derek J. Hughes
Nancy A. Berryhill, Acting Commissioner, Social Security Administration



         Derek J. Hughes seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the decision of the Acting Commissioner of Social Security, denying his application for disability benefits and supplemental security income under Title II and Title XVI of the Social Security Act. Hughes moves to reverse on the grounds that the Administrative Law Judge (“ALJ”) erred in finding that he was not disabled by physical and mental impairments. The Acting Commissioner moves to affirm.

         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 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. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). Substantial evidence is “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When the record could support differing conclusions, the court must uphold the ALJ's findings “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (internal quotation marks omitted).


         Derek Hughes applied for social security benefits, alleging that he had been disabled due to bipolar disorder since July 21, 2012, when he was twenty-eight years old. His medical and treatment records demonstrate a long history of mental illness, with repeated episodes of suicide attempts and ideation. The records also show that Hughes is morbidly obese.

         After a hearing in June of 2014, the ALJ found that Hughes had a severe bipolar disorder but was not disabled. The Appeals Council, however, sent the case back to the ALJ for further proceedings because the decision did not adequately address the limitations resulting from bipolar disorder, was vague as to the limitations Hughes would experience in working with others and dealing with change, and did not address what effect Hughes's morbid obesity would have on his physical and mental health. The Appeals Council directed the ALJ to consider Hughes's obesity, evaluate his mental impairments in accord with 20 C.F.R. § 404.1520a, further consider Hughes's residual functional capacity in accord with specified Social Security Rulings, and if necessary obtain evidence from a vocational expert.

         On remand, a second hearing was held before the same ALJ in May of 2016. The ALJ issued a decision on June 29, 2016, again finding that Hughes was not disabled. In support, the ALJ found that Hughes had severe impairments due to bipolar disorder, personality disorder, and polysubstance abuse in remission. He explained that obesity was not a severe impairment because of a lack of evidence that it caused work-related limitations. The ALJ found that Hughes has a residual functional capacity to do all work at all exertional levels, with a limitation that he could work with others as long as that were only a small part of the job. The ALJ further found, based on the testimony of a vocational expert, that although Hughes could not do his past work as a cook and a telephone sales representative, he could work as an industrial cleaner, a housekeeping cleaner, and an assembler.

         Hughes sought review by the Appeals Council and submitted additional evidence. The new evidence consisted of statements from Dr. Robert A. Murray, Hughes's treating psychiatrist, and records from Northern Human Services, beginning in February of 2012 and through August of 2016. The Appeals Council stated that the evidence that was generated before the ALJ's decision would not change its outcome and that the new evidence could not affect the decision because it pertained to Hughes's treatment after the date of the decision.


         In support of his motion to reverse, Hughes contends that the ALJ erred in failing to consider the fundamental nature of bipolar disorder to explain the gap in his treatment, failing to consider the effect of obesity on his other impairments, improperly assessing his residual functional capacity, and disregarding certain answers provided by the vocational expert. Hughes also contends that the Appeals Counsel erred by failing to remand the case for further proceedings. The Acting Commissioner moves to affirm, arguing that neither the ALJ nor the Appeals Council erred.

         The court need not address all of the issues raised because the ALJ's reliance on the state agency physicians' opinions to assess Hughes's residual functional capacity requires that the decision be reversed and remanded.[1] The opinion of a state agency physician, including a non-examining reviewing consultant, that is based on “a significantly incomplete record” is not substantial evidence to support an ALJ's decision. Alcantara v. Astrue, 257 Fed.Appx. 333, 334 (1st Cir. 2007). On the other hand, an opinion based on an incomplete record is reliable as long as any new evidence does not show a material change for the worse in the claimant's limitations. Giandomenico v. U.S. Social Security Admin., 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017). The ALJ bears the burden to determine and explain the import of any new evidence. Id. As a lay person, however, an ALJ cannot interpret raw medical data for purposes of assessing the claimant's residual functional capacity unless its effect is obvious even to a lay person. Gordils v. Sec'y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).

         Here, the ALJ relied heavily on the opinions of state agency physicians, Dr. Rexford Burnette and Craig Stenslie, Ph.D. Dr. Burnette did a consultative examination of Hughes in December of 2012, and Dr. Stenslie provided an opinion based on a review of the record on January 2, 2013, relying primarily on Dr. Burnette's opinion.[2] The hearing before the ALJ was held in May of 2016. Therefore, more than three years passed between the time when Dr. Burnette and Dr. Stenslie provided their opinions and when the ALJ relied on those opinions.

         During that time, Hughes was hospitalized in February and March of 2013 because of the effects of bipolar disorder, including his intent to commit suicide. He then received treatment at Genesis Behavioral Health Clinic for bipolar disorder, and Dr. John Richmond wrote in March of 2013 that in his opinion Hughes was totally disabled by the disorder.[3] Subsequent treatment notes at Genesis ...

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