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Swain v. Berryhill

United States District Court, D. New Hampshire

October 29, 2018

Ryan Joseph Swain
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          ORDER

          Paul Barbadoro United States District Judge.

         Ryan Swain moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny his applications for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner, in turn, moves for an order affirming her decision. For the reasons that follow, this matter is remanded to the Acting Commissioner for further proceedings.

         I. Standard of Review

         The applicable standard of review in this case provides, in pertinent part:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

42 U.S.C. § 405(g) (setting out standard of review for decisions on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). However, I “must uphold a denial of social security disability benefits unless ‘the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'” Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         II. Background

         The parties have submitted a Joint Statement of Material Facts. That statement, document no. 8, is part of the court's record and will be summarized here, not repeated in full.

         Swain graduated from Boston University in 2011. He remained in Boston until he moved in with his parents in October of 2012. In January of 2017, Swain was working: (1) four hours a week as a math tutor; (2) five hours a week as a classroom paraprofessional at the school where his mother worked as a nurse; and (3) 10 hours a week as a recess monitor, also at his mother's school. At the hearing he received after the SSA denied his applications, Swain testified that he was late for his recess-monitor job two or three times a week, but that the school accommodated his inability to get to work on time.

         In November of 2011, Swain saw his primary-care provider, Dr. Joseph Nosiff, complaining of depression. Dr. Nosiff gave Swain a diagnosis of “depressive disorder not elsewhere classified, ” Administrative Transcript (hereinafter “Tr.”) 362, and later prescribed him anti-depressants. In addition to receiving medication for his mental impairments from both Dr. Nosiff and a psychiatrist, Swain has also received counseling and therapy from psychologists and psychiatrists.

         In May of 2013, Swain was picked up by the police, who found him wandering the streets in the middle of the night. They transported him to a hospital emergency room where he was diagnosed with recurrent severe major depressive disorder, without psychotic features.

         In June of 2013, Dr. Bruce Altman, a psychologist, referred Swain to Dr. Karen Pearson for psychological testing.[1] In the summary of her Psychological Testing Report, Dr. Pearson stated:

[W]hat is seen is supportive of a Major Depressive Episode without psychotic features in a young man with Generalized Anxiety Disorder. There is a situational piece to Ryan's current dysfunction and thus an Adjustment Disorder with Mixed Anxiety and Depression may layer on top of that which is more biologically based. Finally . . . it would appear that Ryan has prominent dependent, schizotypal and obsessive compulsive personality features.

Tr. 316.

         In August of 2013, Swain filed applications for DIB and SSI, claiming that he had been disabled since July of 2011 as a result of depression, anxiety, attention-deficit disorder, and obsessive-compulsive disorder.

         In December of 2015, Dr. Edward Martin, a non-examining state-agency psychological consultant, reviewed Swain's medical records, including a November 2015 Mental Impairment Questionnaire completed by Dr. Christianna Skoczek, a treating psychologist. Based upon his review of those records, Dr. Martin performed a psychiatric review technique (“PRT”) assessment.[2] In performing the PRT, Dr. Martin considered two impairments, affective disorders and anxiety disorders. He determined that Swain had: (1) mild restrictions in his activities of daily living; (2) mild difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence or pace; and (4) no repeated episodes of decompensation, each of extended duration. Based upon those findings, Dr. Martin determined that neither of Swain's two mental impairments was severe enough to qualify as a “listed” impairment under the applicable SSA regulations, and he also concluded that Swain's impairments did not even meet the lesser standard under which an impairment qualifies as severe.[3] See Tr. 89, 99. Finally, Dr. Martin did not assess Swain's mental residual functional capacity (“RFC”), [4]presumably because he had found that Swain had no severe mental impairments.

         In December of 2015, the SSA denied Swain's claims. He requested a hearing before an Administrative Law Judge (“ALJ”), and one was scheduled for January of 2017.

         In December of 2016, Dr. Skoczek, who had treated Swain twice a week since January of 2015, completed a form captioned “Mental Impairment Questionnaire (RFC & Listings).” She indicated diagnoses of major depressive disorder and anxiety.

         With respect to the criteria the SSA uses to determine whether those impairments are severe enough to qualify as listed impairments, Dr. Skoczek found that Swain had: (1) marked restrictions in his activities of daily living; (2) marked difficulties in maintaining social functioning; (3) frequent deficiencies in maintaining concentration, persistence or pace; and (4) continual episodes of deterioration or decompensation in work or work-like settings.

         With respect to Swain's mental RFC, Dr. Skoczek opined that he had: (1) an unlimited or very good capacity for one of 16 mental abilities and aptitudes necessary to do unskilled work; (2) a good capacity for eight of them; (3) a fair capacity for four of them; and (4) a variable capacity for the remaining two. With respect to the five mental abilities and aptitudes necessary to perform particular types of jobs, Dr. Skoczek opined that Swain had a fair to good capacity for each of them. Finally, Dr. Skoczek opined that Swain would be absent from work more than three times a month because of his mental impairments or treatment for them.

         In January of 2017, Dr. Richard Naimark, a psychiatrist who had treated Swain monthly since March of 2013, completed a Mental Residual Functional Capacity Assessment on Swain. With respect to understanding and memory, Dr. Naimark opined that Swain had moderate limitations in one of three listed abilities and marked limitations in the other two.[5] With respect to sustained concentration and persistence, Dr. Naimark opined that Swain had moderate limitations in one of eight listed abilities, marked limitations in four abilities, and extreme limitations in the remaining three.[6] With respect to social interaction, Dr. Naimark opined that Swain had mild limitations in one of five listed abilities, marked limitations in three abilities, and extreme limitations in the remaining ability. With respect to adaptation, Dr. Naimark opined that Swain had marked limitations in one of five listed abilities and extreme limitations in the other four. Finally, he opined that Swain's limitations would interfere with his ability to work on a regular and sustained basis at least 20 percent of the time, and that he would miss “many” days of work each month because of his mental impairments or treatment for them.

         Just before his hearing, Swain submitted several pieces of evidence to the ALJ, only some of which he accepted, but because the ALJ's decision on that matter is not a subject of claimant's appeal, there is no need to describe that evidence.

         At Swain's hearing, the ALJ took testimony from a vocational expert (“VE”), to whom the ALJ posed three hypothetical questions. In ...


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