United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on petition for judicial review of
the decision of the Commissioner filed by the plaintiff,
Robert Lee Derry, on December 23, 2015. For the following
reasons, the decision of the Commissioner is REMANDED.
plaintiff, Robert Lee Derry, filed an application for
Disability Insurance Benefits and Supplemental Security
Income on April 1, 2013, alleging a disability onset date of
May 3, 2012. (Tr. 43). The Disability Determination Bureau
denied Derry's application on May 28, 2013, and again
upon reconsideration on July 26, 2013. (Tr. 43). Derry
subsequently filed a timely request for a hearing on August
29, 2013. (Tr. 43). A hearing was held on February 14, 2014,
before Administrative Law Judge (ALJ) Maryann S. Bright, and
the ALJ issued an unfavorable decision on May 14, 2014. (Tr.
43-53). Vocational Expert (VE) Sharon D. Ringenberg and Derry
testified at the hearing. (Tr. 43). The Appeals Council
denied review, making the ALJ's decision the final
decision of the Commissioner. (Tr. 1-3).
found that Derry met the insured status requirements of the
Social Security Act through March 31, 2017. (Tr. 45). At step
one of the five step sequential analysis for determining
whether an individual is disabled, the ALJ found the Derry
had not engaged in substantial gainful activity since May 3,
2012, the alleged onset date. (Tr. 45). At step two, the ALJ
determined that Derry had the following severe impairments:
obesity, bipolar I disorder, and polysubstance dependence.
(Tr. 45). The ALJ concluded that a knee injury mentioned by
Derry was not a medically determinable impairment. (Tr. 45).
There were no medical records of the injury or allegations
that it hindered him in any way. (Tr. 45). Also, the ALJ
indicated that there was no evidence in the physicians'
chart notes, reports, or any allegations made by Derry or
others that his obesity taken singly or in combination with
other impairments reached the level of medical equivalence to
a listing. (Tr. 46).
three, the ALJ concluded that Derry did not have an
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. (Tr. 46). Specifically, the ALJ determined that
Derry's mental impairments did not meet or medically
equal listing 12.04, Affective Disorders, or 12.09, Substance
Addiction Disorders. (Tr. 46). She considered the paragraph B
criteria for mental impairments, which required at least two
of the following:
marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked
difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation, each of
(Tr. 46). The ALJ defined a marked limitation as more than
moderate but less than extreme and repeated episodes of
decompensation, each of extended duration, as three episodes
within one year or once every four months with each episode
lasting at least two weeks. (Tr. 46).
found that Derry had mild restrictions in daily living
activities. (Tr. 46). She noted that Derry did household
chores, prepared meals, shopped for groceries, and cared
appropriately for his grooming and hygiene. (Tr. 46). The ALJ
found that Derry had moderate difficulties in social
functioning. (Tr. 46). The ALJ noted that Derry did not have
a history of altercations or difficulty getting along with
authority figures. (Tr. 46). Derry indicated that he avoided
social interaction because of mood swings and paranoia. (Tr.
46). However, he testified that he was able to deal with
cashiers when shopping and with acquaintances when playing
tabletop games. (Tr. 46).
found that Derry had moderate difficulties in concentration,
persistence, or pace. (Tr. 46). Derry indicated that he had
difficulty concentrating, but acknowledged that he could pay
attention up to three hours at a time. (Tr. 46). Later, he
reported a 30 minute period of attention, which the ALJ noted
as inconsistent with his testimony that playing tabletop
games could last for about two hours. (Tr. 46). Derry had
well developed mental arithmetic skills and did several
serial 7 subtractions quickly and without error at the
consultative psychological examination. (Tr. 46). The
consultative psychologist determined that Derry's
long-term, intermediate, and short-term memory was intact.
testified that he had episodes of crying spells and emotional
breakdowns. (Tr. 47). He indicated that his uncontrollable
crying had lasted at least an hour and, rarely it would last
up to four hours. (Tr. 47). The ALJ noted that episodes like
this, if frequent enough, interfered with concentration,
persistence, or pace. (Tr. 47). The VE testified that three
absences or unauthorized departures per month would preclude
employment. (Tr. 47). The ALJ found that Derry had not shown
that he had or was expected to have a period of 12 months of
crying spells that would interfere with his employment. (Tr.
indicated that after the alleged onset date Derry's mood
was better after a medication change. (Tr. 47). Derry
reported that he had made plans to attend school and to care
for his sick aunt, and that he was experiencing little
depression. (Tr. 47). In November 2012, Derry reported that
he was sharp with others but that he was not experiencing any
depression. (Tr. 47). On December 14, 2012, Derry indicated
for the first time since his alleged onset date that he had
mood changes of sadness and tearfulness. (Tr. 47).
January of 2013, Derry spent two days as an in-patient. (Tr.
47). Derry was crying, overwhelmed, and depressed, which the
mental health professionals attributed to him running out of
medication. (Tr. 47). Derry was restarted on his medications,
with a slight change, and in late January reported that his
mood was stable and he had no racing thoughts or thoughts to
harm himself or others. (Tr. 47). In February 2013, Derry
reported to a few bad days, but in March of 2013 he
complained of feelings of anger. (Tr. 47). In April, June,
and July of 2013, his crying spells occurred once or more per
week. (Tr. 47). In August, after being compliant with his
medications, a treating board-certified clinical nurse
indicated that he was slightly better. (Tr. 47).
a few days later in August, Derry took an excessive dose of
prescription medication and was treated as an in-patient at
Parkview Hospital for six days and later released with follow
up out-patient therapy. (Tr. 47). Derry indicated that it was
not a suicide attempt. (Tr. 47). He became compliant with his
medications and was reported as “slightly better”
until he ran out of medication in November 2013. (Tr. 47). A
clinical nurse specialist reported in January of 2014 that
Derry was much better, although he had paranoid thoughts and
some impaired recent memory. (Tr. 47-48). Derry reported that
in the past three months he had only one bad mood swing. (Tr.
noted that the record indicated that Derry had frequent
emotional breakdowns from April through July of 2013,
however, that was less than the 12 months as required by the
Social Security regulations. (Tr. 48). Also, the ALJ found
that Derry had experienced episodes of decompensation, but
none of extended duration. (Tr. 48). The ALJ noted that Derry
was an in-patient in January of 2013 because of having run
out of medications and in August 2013 as a result of an
intentional recreational overdosing on prescription
medication. (Tr. 48). Derry did not satisfy the paragraph B
criteria because his ...