United States District Court, D. New Hampshire
Dann B. Nerich,
Carolyn Colvin, Acting Commissioner, Social Security Administration.
MEMORANDUM AND ORDER No. 2014 DNH 239.
PAUL BARBADORO, District Judge.
Dann Nerich seeks judicial review of the Social Security Administration's refusal to reopen his previously denied claim for a period of disability and disability insurance benefits. He makes three separate claims to support his motion to reverse or remand the Commissioner's decision: (1) that the Administrative Law Judge ("ALJ") lacked substantial evidence to conclude that he had the mental capacity to understand the procedures for requesting further review of his previous claim; (2) that the ALJ erred by finding that additional evidence submitted by Nerich did not warrant reopening his claim; and (3) that the ALJ constructively reopened Nerich's claim by reviewing it on the merits, rendering it subject to judicial review. The Commissioner has moved to affirm her decision as to claim (1) and to dismiss claims (2) and (3) for lack of subject matter jurisdiction. For the reasons that follow, I grant the Commissioner's motions and deny Nerich's motion to reverse.
A. Medical Evidence
1. Clinical Records
Nerich is a 58-year-old male. His physicians report that he has "a long history of alcohol abuse." Tr. at 457. In December 2010, he was diagnosed with cirrhosis of the liver. He was hospitalized for five days in January 2010 for ascites,  edema,  and encephalopathy.
Nerich consulted with his gastroenterologist, Dr. Rolland C. Dickson, on March 2, 2010. At that visit, Dickson noted that Nerich presented as a "54-year-old male with end-stage liver disease likely due to alcohol." Tr. at 463. Assessing Nerich's encephalopathy, Dr. Dickson wrote, "On lactulose,  well controlled." Tr. at 464.
Nerich again consulted with Dr. Dickson on May 19, 2010. Dr. Dickson recorded that Nerich "returns today still with intermittent confusion, ascites/edema well controlled. Weight loss and muscle mass loss have stabilized. He notes weakness, lack of interest in things, depression." Tr. at 448. After a physical examination and reviewing lab work, Dr. Dickson wrote that Nerich presented with "end-stage liver disease likely due to alcohol." Tr. at 453. He noted Nerich had been taking lactulose for symptoms related to encephalopathy and continued to complain of confusion intermittently. He felt many of Nerich's symptoms were "due to depression, would benefit from an antidepressant." Id.
On May 20, 2010, Nerich visited Linda D. MacDougall, FPMHNP, for follow-up therapy for his major depression. She noted that Nerich had a good appointment with "Endocrine @ DHMC, liver improving." Tr. at 326. However, MacDougall went on to record that Nerich was struggling with "loss of social support, marital stress became more apparent today. Pt seems anger/perplexed with why wife doesn't spend more time with their son. Pt pleased that wt up a bit. Wanted to begin exercising but no motivation." Tr. at 326. She felt that Nerich was experiencing major depression and asked him to begin taking the medication Amiloride. She wrote that Nerich was still struggling with "intense anhedonia and no motivation. Will begin to increase Fluoxetine." Tr. at 326-27.
Nerich followed up with MacDougall on June 4, 2010. Her assessment was that Nerich appeared "more lethargic today. States he is sleeping better but not sure there has been any significant impact." Tr. at 325. She felt Nerich continued to experience major depression. She asked him to continue with supportive therapy and relationship building. Id.
On June 30, 2010, Nerich visited primary care physician Dr. John Ford, complaining of low energy levels. He reported that he was feeling well. He was alert and oriented and in no acute distress on examination.
Nerich followed up with MacDougall on July 22, 2010, where she noted that he seemed more positive and was getting some projects done at home and looking for part-time work. She again assessed that Nerich was experiencing major depression and should continue with supportive therapy. He was taking the drug Fluoxetine for his depression.
Nerich met with Anna Lingelbach-Lorenz, PA-C, on July 27, 2010. On examination, he appeared alert and pleasant and was in no acute distress.
Nerich followed up with Dr. Dickson on September 1, 2010. Dr. Dickson indicated that Nerich's disease was complicated by "ascites, edema, intermittent confusion, muscle mass loss. His ascites, edema had resolved; his confusion had resolved, as had his muscle mass." Tr. at 263. Shortly after that office visit, Dr. Dickson corresponded with Nerich's primary care physician, Dr. Ford, on September 15, 2010, indicating that Nerich had reached the point "where he should be considered for a liver ...