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Derry v. Berryhill

United States District Court, N.D. Indiana, Fort Wayne Division

February 28, 2017

ROBERT LEE DERRY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          Andrew P. Rodovich United States Magistrate Judge

         This 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.[2] For the following reasons, the decision of the Commissioner is REMANDED.

         Background

         The 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).

         The ALJ 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).

         At step 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 extended duration.

(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).

         The ALJ 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).

         The ALJ 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. (Tr. 46-47).

         Derry 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. 47).

         The ALJ 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).

         In 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).

         However, 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. 48).

         The ALJ 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 ...


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