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McInnis v. Berryhill

United States District Court, D. Maine

June 25, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant


          John H. Rich III United States Magistrate Judge

         Following briefing by the parties on the plaintiff's appeal of an administrative law judge's (“ALJ's”) denial of her applications for Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) benefits, see Itemized Statement of Errors (“Statement of Errors”) (ECF No. 15); Defendant's Opposition to Plaintiff's Statement of Errors (ECF No. 17), the plaintiff filed a motion for remand on the separate basis that new and material evidence called the decision into question, see Motion for Order Remanding Commissioner's Decision Under Sentence 6 of 42 U.S.C. § 405(G) (“Motion”) (ECF No. 20). Following accelerated briefing on the Motion, see ECF Nos. 21-22, I heard oral argument on both the Motion and the appeal. For the reasons that follow, I conclude that the case should be remanded for reconsideration of new and material evidence. Hence, I recommend that the court grant the Motion and deem the Statement of Errors moot.

         I. Discussion

          A. Procedural History

         The plaintiff filed applications for SSD and SSI benefits on January 11, 2013, and April 22, 2013, respectively, alleging that she suffered from several physical and mental impairments that rendered her disabled as of June 9, 2012. See Record at 11, 14. The plaintiff's claims were denied initially, and on reconsideration. See Id. She requested a hearing, which was held before an ALJ on November 24, 2015. See id. at 11, 28. Both the plaintiff and a vocational expert (“VE”) testified. See id. at 28-29. On January 8, 2016, the ALJ rendered a decision finding that the plaintiff had not been disabled within the meaning of the Social Security Act at any time from her alleged onset date, June 9, 2012, through the date of the decision. See Finding 11, id. at 22.

         The ALJ deemed the plaintiff's physical impairments nonsevere but found that she had severe mental impairments of generalized anxiety disorder and bipolar disorder. See Finding 3, id. at 14. He concluded that she retained the residual functional capacity (“RFC”) to:

[P]erform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is able to carry out simple and moderately complex tasks in a normal schedule; the claimant is able to interact appropriately with co-workers and supervisors, and deal effectively with the public on an occasional basis; and the claimant is able to adapt to a moderate degree of workplace changes in the course of a normal workday and workweek.

Finding 5, id. at 16.

         With the benefit of the vocational testimony, the ALJ determined that the plaintiff remained capable of performing the representative jobs of price marker, mail sorter, and electrical assembler, which existed in significant numbers in the national economy, and, therefore, was not disabled. See id. at 22. The Appeals Council declined to review the decision, see id. at 1-3, making the decision the final determination of the commissioner, see 20 C.F.R. §§ 404.981, 416.1481.

         B. The Case Before the ALJ

         The case before the ALJ was marked by three separate periods: the period from the plaintiff's alleged onset date of disability, June 9, 2012, through August 2014, when she was committed to the care of Riverview Psychiatric Center (“Riverview”) in Augusta, Maine, after having been found incompetent to stand trial on minor criminal charges on June 18, 2014; the period of her psychiatric hospitalization, ending with her discharge from inpatient care at Riverview on December 8, 2014; and, finally, the period from her discharge until the date of the ALJ's decision, January 8, 2016.

         During the pre-Riverview period, the plaintiff failed to attend a series of consultative examinations required as part of her disability claim from September through November 2013. See Record at 72. Accordingly, on November 14, 2013, agency nonexamining consultant Brian Stahl, Ph.D., found that there was insufficient evidence to decide her claim. See id.

         The plaintiff had begun receiving treatment in March 2011 from psychiatric nurse practitioner (“NP”) Debra Ort, who diagnosed her at intake with bipolar affective disorder. See Id. at 377, 380. In May 2011, NP Ort noted that the plaintiff was hypomanic. See Id. at 387. On August 12, 2013, NP Ort completed a questionnaire in which she indicated that many of the plaintiff's work-related mental abilities were markedly limited and that her limitations were such that she could not engage in full-time work “without regression in stability.” Id. at 417-18.

         In May 2014, the plaintiff attended a consultative examination with agency examining consultant James R. Werrbach, Ph.D. See Id. at 405. The plaintiff told Dr. Werrbach that her disability stemmed from her physical and emotional issues. See Id. at 406. Dr. Werrbach found, inter alia, that the plaintiff had an intact memory, exhibited the ability to concentrate and answer his questions for the most part, that her speech was pressured but of normal volume and fluency, and that, for the most part, she had a sequential, clear, and coherent thought process. See Id. at 408. He diagnosed her with post-traumatic stress disorder, panic disorder with agoraphobia, and dysthymic disorder. See Id. at 409.

         Dr. Werrbach stated that “[i]t would appear” that the plaintiff “would be able to do a work-related activity such as understanding[, ]” “would have some difficulties doing work-related activities such as memory, sustained concentration, and persistence, ” but not to the extent that it would be “impossible for her to do these tasks[, ]” and “is able to socially interact with others and adapt to new social situations even though she does suffer from a panic disorder with resulting agoraphobia.” Id.

         With the benefit of review of the Werrbach report, agency nonexamining consultant Thomas Knox, Ph.D., completed a mental RFC assessment on May 13, 2014, in which he indicated that the plaintiff could carry out simple and moderately complex tasks in a normal schedule, interact appropriately with coworkers and supervisors on a fulltime schedule, deal effectively with the public on an occasional basis, and adapt to a moderate degree of workplace changes in the course of a normal workday/workweek. See id. at 94-96.

         On June 18, 2014, the plaintiff was found incompetent to stand trial by the Maine Superior Court in Penobscot County following what she testified was an arrest for stealing milk, which caused her to have “a nervous breakdown.” Id. at 17, 47. Following her admission to Riverview in August 2014, the plaintiff was treated by Robert A. Riley, Ph.D., a clinical neuropsychologist, and Physician's Assistant (“PA”) Zachary D. Smith, PA-C. See id. at 430-38, 488-502.

         On September 15, 2014, Dr. Riley noted that the plaintiff “continued with very pressured speech and disorganized thinking[, ]” believing there to be a conspiracy against her between her lawyer, the judge presiding over her case, the district attorney prosecuting it, and her boyfriend. Id. at 436-38. On October 1, 2014, PA Smith noted that she “clearly remains quite hypomanic” and diagnosed her with bipolar disorder. See id. at 421, 425. On October 22, 2014, Dr. Riley indicated that the plaintiff was improving and “appearing near her baseline[.]” Id. at 434. She had a more normal rate of speech, with generally well-organized and coherent thoughts. See Id. The plaintiff continued to improve and was released on December 8, 2014. See id. at 419. At discharge, Stephen Moran, M.D., a treating physician at Riverview, diagnosed her with bipolar affective disorder, most recent episode manic with psychotic features, currently in remission on medications. See Id. at 419-20.

         After her discharge, the plaintiff continued outpatient treatment with PA Smith. See id. at 488-502. On December 22, 2014, he noted that her basic cognitive functioning was intact, she had coherent thought processes but with loose associations, tangentiality, and flight of ideas, and she was still hypomanic. See id. at 489. On January 20, 2015, he found that she had an increase in her symptoms and was “hypomanic to manic with pressured and intrusive speech . . . and mild thought disorganization.” Id. at 497. He suspected that she might not be complying with her prescribed pharmacological ...

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