UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Derek J. Hughes
v. Civil No. 17-cv-235-JD
Opinion No. 2018 DNH 026
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration
O R D E R
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).
Background
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
2
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.
3
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.
Discussion
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
4
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).
1 Contrary to Hughes’s theory, however, there is no
requirement that a treating physician’s opinion always be given
more weight than the opinions of state agency consultants and
non-examining physicians. Instead, all medical evidence must be
considered and weighed under the process provided in § 404.1527
and § 416.927. When appropriate, an ALJ may rely on the opinion
of a state agency physician as medical opinion evidence.
§§ 404.1527(e) & 416.927(e); SSR 96-6p, 1996 WL 374180, at *2
(July 2, 1996).
5
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
2 Although Hughes contends that Dr. Burnette and Dr.
Stenslie did not review all of the medical records that were
available to them, he does not show what records were overlooked
or why those records would be material to the opinions.
3 The determination of disability is a finding that is
reserved to the ALJ. For that reason, a physician’s opinion
that his patient is disabled is not binding for purposes of a
disability determination. 20 C.F.R. § 404.1527(d)(1). On the
other hand, however, the ALJ cannot disregard the opinion
entirely. Dr. Richmond’s opinion about the severity of Hughes’s
bipolar disorder is pertinent to the state agency physicians’
opinions. See Ault v. Astrue,
2012 WL 72291, at *7 (D.N.H. Jan.
10, 2012).
6
Subsequent treatment notes at Genesis document Hughes’s poor
condition due to his bipolar disorder and “self injurious
behaviors.”
Hughes was admitted to Concord Hospital in February of 2014
for “suicidal ideation,” because he planned to overdose on his
medications. He was admitted to Dartmouth Medical Center in
February of 2015 for suicidal ideation. He then did not resume
treatment again until June of 2016.
The ALJ interprets the gap in treatment after February of
2015 as showing that Hughes had improved and did not need
treatment. The ALJ cites Hughes’s work at a hotel where he
earned $5,587, to show that he was able to work during the gap
period. The record, however, is much less positive.
During the gap period, Hughes made repeated attempts to
work that were short and unsuccessful because of his erratic
behavior. The hotel job cited by the ALJ lasted for only a
couple of months. The ALJ states in his decision, without
reference to any medical opinion or supporting medical records,
that the “evidence [of working at the hotel] raises a question
as to whether [Hughes] might have been able to continue that
employment had he been actively engaged in treatment with
7
therapy or counseling during this time.”4 In contrast, Hughes
argues that the gap in treatment is evidence of his bipolar
disorder and does not show improvement.5 Hughes, however,
provides no medical evidence to support his interpretation of
the gap.6
To the extent the ALJ relies on the gap in treatment to
show that Hughes did not experience a material change for the
worse after January of 2013, that explanation is insufficient in
light of the entire record. The ALJ’s references to occasional
optimistic notes in the record also do not sufficiently show
that no material change for the worse occurred after the state
4 The record shows that Hughes’s condition varied widely
while he was in treatment, including hospitalization for
suicidal plans.
5 Hughes relies on Walsh v. Astrue, 2012 WL 941781, at *4-*5
(D.N.H. Mar. 20, 2012), as support for his theory that the gap
is evidence of the severity of his bipolar disorder. In Walsh,
the court explained that the ALJ did not properly resolve
conflicts in the evidence by “cherry picking” positive evidence
and ignoring the context due to the “episodic nature” of bipolar
disorder. The court did not find that a diagnosis of bipolar
disorder would necessarily explain a lack of treatment for more
than a year.
6 In fact, Hughes represents that because he had stopped
taking his medication during the gap period, “the symptoms of
his bipolar disorder began to cycle more rapidly.” Doc. no.
8-1, at 17. As a result, it does not appear that the gap of
more than a year was due to the episodic nature of Hughes’s
bipolar disorder.
8
agency physicians provided their opinions.7 See Walsh, 2012 WL
941781, at *4-*5. Given the serious nature of Hughes’s mental
illness and the outdated state agency physician opinions that
formed the basis for the ALJ’s decision, the case must be
remanded for further proceedings.
Conclusion
For the foregoing reasons, the plaintiff’s motion to
reverse (document no. 8) is granted. The defendant’s motion to
affirm (document no. 11) is denied.
The decision of the Acting Commissioner is reversed and
remanded for further proceedings pursuant to Sentence Four of
§ 405(g).
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
February 8, 2018
cc: Terry L. Ollila, Esq.
T. David Plourde, Esq.
William D. Woodbury, Esq.
7For example, the ALJ noted that Hughes was emotional
during the hearing, even to the point of crying at times, but
minimized that unusual behavior because he thought Hughes was
generally polite and appropriate.
9
