Gorman v. US Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Henri Gorman
v. Civil No. 18-cv-889-LM
Opinion No. 2020 DNH 016
Andrew Saul, Commissioner
U.S. Social Security Administration
O R D E R
Joseph Henri Gorman seeks judicial review, pursuant to 42
U.S.C. § 405(g), of the decision of the Commissioner of the
Social Security Administration denying his application for
child’s insurance benefits. Gorman moves to reverse the
Commissioner’s decision, and the Commissioner moves to affirm.
For the reasons discussed below, the decision of the
Commissioner is reversed and remanded.
STANDARD OF REVIEW
In reviewing the final decision of the Commissioner in a
social security case,1 the court “is limited to determining
1 A person may be entitled to child’s insurance benefits if he
is older than eighteen and alleges a disability that began
before he reached the age of twenty-two. 20 C.F.R.
§ 404.350(a)(5). When determining whether a claimant is
disabled for purposes of receiving child’s insurance benefits,
the Administrative Law Judge (“ALJ”) must apply the same five-
step sequential process as he would in a claim for social
security disability benefits. 20 C.F.R. § 404.1505(a); Grady v.
Astrue, 894 F. Supp. 2d 131, 133 n.1 (D. Mass. 2012). Likewise,
the district court applies the same standard of review under 42
U.S.C. § 405(g).
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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 if 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 is more than a
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Astralis
Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev., 620 F.3d
62, 66 (1st Cir. 2010).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R.
§ 404.1520(a)(4). The claimant “has the burden of production
and proof at the first four steps of the process.” Freeman v.
Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). At the fifth step,
the burden shifts to the Commissioner to provide “evidence of
specific jobs in the national economy that the applicant can
still perform. Id.
BACKGROUND
A detailed view of the facts can be found in the parties’
statements of material facts (docs. nos. 8-1, 9). The court
provides a brief summary of the case here.
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On September 4, 2013, Gorman filed an application for
Disabled Adult Child’s Benefits. Gorman alleged a disability
onset date of September 1, 2013. He alleged a disability due to
bipolar disorder, schizoaffective disorder, and post-traumatic
stress disorder. See Administrative Record (“AR”) at 99.
After Gorman’s claim was denied, he requested a hearing
before an ALJ. On August 31, 2015, ALJ Thomas Merrill held a
hearing, during which Gorman, who was represented by a non-
attorney representative, appeared and testified. Gorman’s
mother also testified.
On October 16, 2015, ALJ Merrill issued an unfavorable
decision. He concluded at Step 2 of the sequential evaluation
process that Gorman did not have a severe impairment. The ALJ
gave strong weight to the January 2014 opinions of Joan Scanlon,
Ph.D., a consultant psychologist, and Edward Martin, Ph.D., a
state-agency psychologist. Dr. Scanlon, who examined Gorman,
opined that Gorman did not have any severe limitations. Dr.
Martin gave great weight to and agreed with Dr. Scanlon’s
analysis. AR at 92-93. The ALJ gave little weight to an
opinion from Gorman’s therapist in which the therapist found
that Gorman had severe impairments. The ALJ also found that
Gorman’s testimony lacked credibility and that his mother’s
testimony lacked credibility. The ALJ terminated his analysis
and found that Gorman was not disabled at Step 2.
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The Appeals Council denied Gorman’s request for review.
Gorman then filed suit in this court, which granted an assented-
to motion for remand. Gorman v. U.S. Soc. Sec. Admin., Acting
Commissioner, Case No. 16-CV-532-JL (D.N.H.), ECF Nos. 10, 11.
On remand, the Appeals Council vacated the ALJ’s decision and
remanded Gorman’s claim to the same ALJ. The Appeals Council
stated that the prior decision failed to consider relevant
evidence in the record, specifically certain educational records
and a teacher’s questionnaire. The Appeals Council directed the
ALJ to evaluate that evidence and to further evaluate Gorman’s
mental impairments.
After remand, the ALJ held a hearing on April 16, 2018,
taking testimony from Gorman and a vocational expert. On June
13, 2018, the ALJ again found Gorman not disabled at Step 2
because his impairments were non-severe. The ALJ again gave
great weight to the January 2014 opinions of Drs. Scanlon and
Martin, which found no severe limitations. As to new medical
evidence in the record post-dating the opinions of Drs. Scanlon
and Martin, the ALJ stated: “Although additional treatment notes
were admitted to the record after these opinions were rendered,
these additional treatment notes do not document any meaningful
change or deterioration in the claimant’s presentation and these
opinions remain consistent with the evidence of record in its
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entirety.” AR at 635. No further explanation was offered.
This action followed.
DISCUSSION
Gorman raises three claims of error on appeal. He argues
that the ALJ improperly determined that his mental impairments
did not rise to the level of a severe impairment. He contends
that “[t]he presiding ALJ was not properly appointed under the
Constitution and, therefore, lacked legal authority to hear and
decide” Gorman’s case. Doc. 8-2 at 1. And he argues that the
ALJ failed to properly address probative medical evidence in the
record. The court addresses only Gorman’s argument that the ALJ
failed to properly address probative medical evidence in the
record, and it reverses the Commissioner’s decision on that
ground.2
Gorman contends that the ALJ failed to set forth a proper
analysis of the evidence in his decision and failed to specify
the reasons upon which his analysis was based. Specifically,
Gorman points to medical evidence from 2017 and 2018 that
supports his argument that he has a severe impairment. This
evidence includes quarterly reviews with treatment plans for
2 Because the case will be remanded for further proceedings,
the appointment challenge is moot. See Ulitsch v. Commissioner,
No. 18-CV-694-JL, 2019 WL 4686776, at *5 (D.N.H. Sept. 26,
2019).
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Gorman issued by the Greater Nashua Mental Health Center.
Gorman asserts that this evidence “underscore[s] his treatment
of individual therapy, psychiatric services, group therapy, and
case management for this period,” and his mental health problems
and the goals set for decreasing his symptoms. Doc. 8-2 at 14.
He notes that “[t]hese reports are longitudinal, covering a
period of well over a year and showing that Mr. Gorman’s
depression, anxiety, and bipolar disorder have not improved
despite treatment and medications.” Id. Gorman contends that
the ALJ failed to provide any analysis of this medical evidence.
The Commissioner responds, arguing that the ALJ was not
required to explain the impact of this evidence. Instead, the
Commissioner argues that the ALJ was only obligated to consider
the new evidence, which he did. The Commissioner further argues
that the opinions of Drs. Scanlon and Martin provide substantial
evidence to support the ALJ’s finding at Step 2.
Contrary to the Commissioner’s argument, an opinion from a
state-agency consultant cannot provide substantial evidence to
support an ALJ’s finding if the consultant’s opinion is based on
a record that is “significantly incomplete.” Alcantara v.
Astrue, 257 Fed. Appx. 333, 334-35 (1st Cir. Dec. 12, 2007);
accord Guyette v. Berryhill, No. 17-CV-486-LM, 2019 WL 1199395,
at *3 (D.N.H. Mar. 3, 2019). The record is significantly
incomplete if later evidence shows a material change in the
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claimant’s limitations. Giandomenico v. Soc. Sec. Admin., No.
16-CV-506-PB, 2017 WL 5484657, at *4 (D.N.H. Nov. 15, 2017).
Critically, “[t]he ALJ bears the burden of determining and
explaining whether missing evidence is material to assessing the
claimant’s limitations.” Blakely v. Saul, No. 18-CV-702-LM,
2019 WL 4668020, at *5 (D.N.H. Sept. 25, 2019).
Here, the ALJ premised his finding that there were no
severe impairments on the conforming January 2014 opinions of
the two medical experts, Drs. Scanlon and Martin, which he gave
great weight. The ALJ, however, failed to carry his burden to
provide useful analysis about why he gave the opinions of Drs.
Scanlon and Martin great weight despite the medical evidence
post-dating their opinions.3 Instead, the ALJ offered only a
conclusory statement that, in general, new treatment notes “do
not document any meaningful change or deterioration in the
claimant’s presentation.” AR at 635.
“It is insufficient for the ALJ to simply state that the
record was not materially changed. Instead, the ALJ must make
the absence of change adequately clear.” Blakely, 2019 WL
4668020, at *5 (citation omitted). In the absence of an
adequate explanation about why the record was not materially
3 The new medical evidence relates directly to Gorman’s mental
health diagnoses, treatment, and prognosis, and, on its face, it
could be construed as evidencing a material change in his
limitations.
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changed, the Commissioner’s decision must be reversed, and the
case remanded. See Alcantara, 257 Fed. Appx. at 334-35.
CONCLUSION
For the foregoing reasons, Gorman’s motion to reverse (doc.
no. 8) is granted. The Commissioner's motion to affirm (doc.
no. 10) is denied. The case is remanded to the Commissioner
under sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings consistent with this decision.
The Clerk of Court is directed to enter judgment in
accordance with this order and close the case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
January 31, 2020
cc: Counsel of Record
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