Chamberlin v. Social Security CV-94-202-L 08/28/95 P THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Susan L. Chamberlin
v. #C-94-202-L
Shirley S. Chater, Commissioner of Social Security
ORDER ON MOTION TO ALTER AND AMEND JUDGMENT AND TO REMAND ______________FOR FURTHER ADMINISTRATIVE PROCEEDINGS
On January 11, 1995, this court, in its memorandum order,
affirmed the Secretary's decision denying benefits to plaintiff,
Susan Chamberlin. The court reasoned that the Administrative Law
Judge (ALJ) had not committed error in finding the plaintiff not
disabled. This court further concluded that the plaintiff, a
young woman with an IQ of 75, "had fully and adeguately
understood her rights." Chamberlin v. Shalala, No. 94-202-L
(D.N.H. filed January 11, 1995).
At the time of the initial administrative hearing the
plaintiff appeared pro se before the ALJ, which this court was
aware of prior to issuing its memorandum order of January 11,
1995. However, plaintiff's counsel now points out that plaintiff
never informed the ALJ that she had seen a psychologist on August
27, 1992. The psychologist's evaluation noted her diminished
intellectual capacities and the fact that she was "functioning in
the borderline level of intellectual ability". When guestioned
by the ALJ about any problems in addition to her physical ones,
she denied the same. This court's January 11, 1995 order was appealed to the
United States Court of Appeals (Chamberlin v. Chater, 1st Cir.
docketed as 95-1159). The issue presented on appeal was
plaintiff's lack of legal representation at the administrative
level and whether she knowingly and voluntarily waived such
representation.
Subseguent to filing the appeal, plaintiff filed another
application for SSI benefits. On March 26, 1995, the plaintiff
was notified that she was eligible for SSI benefits, with an
onset date of January 1, 1995, based upon a primary diagnosis of
depression and a secondary diagnosis of mild mental retardation,
lumbar strain, and asthma by history.
Pursuant to Rule 60(b)(2) of the Federal Rules of Civil
Procedure, plaintiff now seeks to reopen the court's decision of
January 11, 1995 and have the case remanded to the Commissioner
for further action based upon newly discovered evidence under
sentence six of 42 U.S.C. § 405(g). Succinctly, plaintiff
contends that, based on evaluations performed by Dr. James M.
Claiborn, evidence of her major depression and borderline
personality disorder existed prior to this Court's order of
January 11, 1995.
Dr. Claiborn, in September, 1994, gave an evaluation to the
State of New Hampshire Department of Health and Human Services,
Division of Human Services. Dr. Claiborn stated that "as far as
I can tell, claimant has been depressed for years, never
adeguately treated." He further found plaintiff's mood to be
2 "anxious, hopeless, depressed, focused on physical symptoms,
feels overwhelmed by almost everything around people due to
anxiety. Dr. Claiborn stated that plaintiff's attention was
disrupted and her concentration poor, her fund of information was
limited due to her below average IQ, and her daily activities
were limited. He noted that plaintiff had a very hard time
getting to appointments and dealing with day-to-day demands;
considerable difficulty dealing with other people due to temper
and suspiciousness; difficulty dealing with stress; and likely to
lose temper and act out in a self destructive or explosive way.
Dr. Claiborn also indicated that plaintiff has a history of
overdosing and suicide attempts.
Based on Dr. Claiborn's report, plaintiff was found eligible
for APTD.
Dr. Claiborn, on February 8, 1995 made a subseguent
evaluation for Social Security disability purposes. This
evaluation invariably led to the conclusion finding plaintiff
eligible for SSI effective January 1, 1995. During this
subseguent evaluation. Dr. Claiborn found plaintiff's general
appearance to be poorly maintained, her behavior to be anxious,
and her speech to be rambling with difficulty in focusing her
attention. Dr. Claiborn noted that plaintiff was extremely
limited in her daily activities and stays home avoiding other
people, with few interests. This evaluation was based upon his
having seen plaintiff "perhaps five times in the course of a
year, where she has cancelled most of her appointments."
3 Although issues decided in this court's January 11, 1995
order are currently pending on appeal, on April 7, 1995 the First
Circuit Court of Appeals issued the following order:
The assented to motion for stay of appellate proceedings while claimant pursues Rule 60 (b) relief in the district court is granted. The parties shall report to this court every sixty days on the status of district court proceedings.
Therefore, appropriately vested with the authority to
consider plaintiff's motion, the court notes the apposite parts
of Rule 60. Fed. R. Civ. P. 60(b)(2) provides:
On Motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order. . . for the following reasons. . .:
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).
Motions to reopen judgments pursuant to Fed.R. Civ.P. 60(b)
are addressed to the discretion of the district court and will be
reversed only when that discretion is abused. Dankese v. Defense
Logistics Agency, 693 F.2d 13, 15 (1st Cir. 1982).
As stated in Mumford v. Bowen, 814 F.2d 328, 329-330 (7th
Cir. 1986), prereguisites for Rule 60(b)(2) relief are:
1) the evidence was in existence at the time of trial or
pertains to facts in existence at the time of trial;
2) it was discovered following trial;
3) due diligence on the part of the movant to discover the
new evidence is shown or may be inferred;
4 4) the evidence is admissible;
5) it is credible;
6) the new evidence is material;
7) it is not merely cumulative or impeaching; and finally,
8) the new evidence is likely to change the outcome.
With respect to the prereguisites numbered 1, 4, 5, 6, and
8, there appears to be lack of controversy in meeting the test.
See Id.
In addressing steps 2, 3, and 7, one has to consider the
obvious fact that the claimant was not represented by counsel,
has a low IQ, and was emotionally distraught and out of her
element in appearing pro se before the Administrative Law Judge.
In considering these factors, there should be no negative
reflection on the ALJ. Succinctly, the ALJ, in some detail,
inguired into claimant's understanding of the proceedings and had
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Chamberlin v. Social Security CV-94-202-L 08/28/95 P THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Susan L. Chamberlin
v. #C-94-202-L
Shirley S. Chater, Commissioner of Social Security
ORDER ON MOTION TO ALTER AND AMEND JUDGMENT AND TO REMAND ______________FOR FURTHER ADMINISTRATIVE PROCEEDINGS
On January 11, 1995, this court, in its memorandum order,
affirmed the Secretary's decision denying benefits to plaintiff,
Susan Chamberlin. The court reasoned that the Administrative Law
Judge (ALJ) had not committed error in finding the plaintiff not
disabled. This court further concluded that the plaintiff, a
young woman with an IQ of 75, "had fully and adeguately
understood her rights." Chamberlin v. Shalala, No. 94-202-L
(D.N.H. filed January 11, 1995).
At the time of the initial administrative hearing the
plaintiff appeared pro se before the ALJ, which this court was
aware of prior to issuing its memorandum order of January 11,
1995. However, plaintiff's counsel now points out that plaintiff
never informed the ALJ that she had seen a psychologist on August
27, 1992. The psychologist's evaluation noted her diminished
intellectual capacities and the fact that she was "functioning in
the borderline level of intellectual ability". When guestioned
by the ALJ about any problems in addition to her physical ones,
she denied the same. This court's January 11, 1995 order was appealed to the
United States Court of Appeals (Chamberlin v. Chater, 1st Cir.
docketed as 95-1159). The issue presented on appeal was
plaintiff's lack of legal representation at the administrative
level and whether she knowingly and voluntarily waived such
representation.
Subseguent to filing the appeal, plaintiff filed another
application for SSI benefits. On March 26, 1995, the plaintiff
was notified that she was eligible for SSI benefits, with an
onset date of January 1, 1995, based upon a primary diagnosis of
depression and a secondary diagnosis of mild mental retardation,
lumbar strain, and asthma by history.
Pursuant to Rule 60(b)(2) of the Federal Rules of Civil
Procedure, plaintiff now seeks to reopen the court's decision of
January 11, 1995 and have the case remanded to the Commissioner
for further action based upon newly discovered evidence under
sentence six of 42 U.S.C. § 405(g). Succinctly, plaintiff
contends that, based on evaluations performed by Dr. James M.
Claiborn, evidence of her major depression and borderline
personality disorder existed prior to this Court's order of
January 11, 1995.
Dr. Claiborn, in September, 1994, gave an evaluation to the
State of New Hampshire Department of Health and Human Services,
Division of Human Services. Dr. Claiborn stated that "as far as
I can tell, claimant has been depressed for years, never
adeguately treated." He further found plaintiff's mood to be
2 "anxious, hopeless, depressed, focused on physical symptoms,
feels overwhelmed by almost everything around people due to
anxiety. Dr. Claiborn stated that plaintiff's attention was
disrupted and her concentration poor, her fund of information was
limited due to her below average IQ, and her daily activities
were limited. He noted that plaintiff had a very hard time
getting to appointments and dealing with day-to-day demands;
considerable difficulty dealing with other people due to temper
and suspiciousness; difficulty dealing with stress; and likely to
lose temper and act out in a self destructive or explosive way.
Dr. Claiborn also indicated that plaintiff has a history of
overdosing and suicide attempts.
Based on Dr. Claiborn's report, plaintiff was found eligible
for APTD.
Dr. Claiborn, on February 8, 1995 made a subseguent
evaluation for Social Security disability purposes. This
evaluation invariably led to the conclusion finding plaintiff
eligible for SSI effective January 1, 1995. During this
subseguent evaluation. Dr. Claiborn found plaintiff's general
appearance to be poorly maintained, her behavior to be anxious,
and her speech to be rambling with difficulty in focusing her
attention. Dr. Claiborn noted that plaintiff was extremely
limited in her daily activities and stays home avoiding other
people, with few interests. This evaluation was based upon his
having seen plaintiff "perhaps five times in the course of a
year, where she has cancelled most of her appointments."
3 Although issues decided in this court's January 11, 1995
order are currently pending on appeal, on April 7, 1995 the First
Circuit Court of Appeals issued the following order:
The assented to motion for stay of appellate proceedings while claimant pursues Rule 60 (b) relief in the district court is granted. The parties shall report to this court every sixty days on the status of district court proceedings.
Therefore, appropriately vested with the authority to
consider plaintiff's motion, the court notes the apposite parts
of Rule 60. Fed. R. Civ. P. 60(b)(2) provides:
On Motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order. . . for the following reasons. . .:
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).
Motions to reopen judgments pursuant to Fed.R. Civ.P. 60(b)
are addressed to the discretion of the district court and will be
reversed only when that discretion is abused. Dankese v. Defense
Logistics Agency, 693 F.2d 13, 15 (1st Cir. 1982).
As stated in Mumford v. Bowen, 814 F.2d 328, 329-330 (7th
Cir. 1986), prereguisites for Rule 60(b)(2) relief are:
1) the evidence was in existence at the time of trial or
pertains to facts in existence at the time of trial;
2) it was discovered following trial;
3) due diligence on the part of the movant to discover the
new evidence is shown or may be inferred;
4 4) the evidence is admissible;
5) it is credible;
6) the new evidence is material;
7) it is not merely cumulative or impeaching; and finally,
8) the new evidence is likely to change the outcome.
With respect to the prereguisites numbered 1, 4, 5, 6, and
8, there appears to be lack of controversy in meeting the test.
See Id.
In addressing steps 2, 3, and 7, one has to consider the
obvious fact that the claimant was not represented by counsel,
has a low IQ, and was emotionally distraught and out of her
element in appearing pro se before the Administrative Law Judge.
In considering these factors, there should be no negative
reflection on the ALJ. Succinctly, the ALJ, in some detail,
inguired into claimant's understanding of the proceedings and had
no inkling of her mental background or adolescent family
instability.
The lack of counsel, at the earlier proceedings, has now
posed a problem in that there are indications that there may have
been a reluctance on the part of the claimant to disclose her
past problems because of fear that she might have her daughter
taken away by the State.
When plaintiff resumed counseling with Dr. Claiborn in
February, 1994 her case had already been denied at the Appeals
Council level on December 21, 1993. Notably, her counsel could
5 not allude to this evidence in his appeal before this court.
Some of the emotional evidence was extant prior to trial,
other evidence of the same nature was discovered after trial in
this court The nature of her illness, the undeserved stigma
associated with mental illness, her reluctance to admit she was
ill, concern about losing custody of her daughter together with
her mental capacity and alertness are appropriate factors to be
considered by this court.
Under 42 U.S.C. § 405(g), remand is appropriate only where
the court determines that further evidence is necessary to
develop the facts of the case fully, that such evidence is not
cumulative, and that consideration of it is essential to a fair
hearing. Evangelista v. Secretary of Health & Human Services,
826 F .2d 136, 139 (1st Cir. 1987).
On the other hand. Congress plainly intended that remands
for good cause should be few and far between, that a yo-yo effect
should be avoided. JCd. at 141. In order to timely resolve
social security appeals, the process should not be bogged down or
duly impeded by unfounded reguests for remand. Id.
Defendant's counsel, in a well-reasoned memorandum of law,
has stated that the plaintiff's current Affective Disorder, even
if present during the time period before the ALJ, was clearly not
at a disabling level of severity.
This is a close call. Nevertheless, in considering all the
factors present in this case the court concludes that, in the
interests of justice, the motion to remand shall be granted. In
6 addition, while not a cogent reason, a remand will obviate the
appeal. For the sake of providing to the plaintiff a full and
fair hearing and to have pertinent and potentially crucial
evidence properly considered, the case is remanded, pursuant to
Rule 60(b)(2) and sentence six of 42 U.S.C. § 405(g), in order
for the Commissioner to determine whether the plaintiff's current
Affective Disorder existed prior to January 1, 1995. As part of
the determination, the Commissioner shall, within the context of
a further hearing, consider the newly discovered psychological
evidence. If such a condition did exist, the Commissioner must
also determine whether the limitation constituted a disability
within the context of the law.
August 28, 1995
Martin F. Loughlin Senior Judge David Broderick, AUSA Raymond J. Kelly, Esg.