Jerome L. v. Saul

• Court: District Court, D. Rhode Island
• Decided: July 19, 2021
• Docket: 1:20-cv-00197
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND JEROME L., : Plaintiff, : : : v. : C.A. No. 20-197PAS : KILOLO KIJAKAZI,1 : Acting Commissioner of Social Security, : Defendant. : MEMORANDUM AND ORDER PATRICIA A. SULLIVAN, United States Magistrate Judge. Having been denied disability benefits at the administrative phase based on applications filed in 2010 (“2010 applications”) and again in 2015 (“2015 applications”),on May 2, 2018, Plaintiff Jerome L. filed the current applications for Supplemental Security Income(“SSI”) and Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”), 42 U.S.C. § 405(g)(the “current applications”). After thecurrent applications were denied administratively by the Commissionerbased on the decision of an Administrative Law Judge (“ALJ”), he filed his complaint in this Court, seeking to reverse the adverse decision of the Commissioner. Following briefing, the Court held a hearing on March 23, 2021, at which the parties presented arguments and the Court issued a bench decision concluding that the ALJ had committed no errors oflaw and had relied on findings that were well supported by substantial evidence. ECF No. 21 at 35- 39. Judgment entered against Plaintiff the same day. ECF No. 18; seeECF No. 17. 1Kilolo Kijakazi is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi has been substituted for Commissioner Andrew Saul as the defendant in this action. Invoking Fed. R. Civ. P. 59(e), Plaintiff has returned to the Court asking that the judgment be amended based on newly discovered evidence and to cure the Court’s error of apprehension. ECF No. 22. Specifically, Plaintiff points to the ALJ’s reference inher decision to apsychological consultative evaluation report prepared by John P. Parsons, Ph.D., in connection withPlaintiff’s 2015 applications (“Parsons Report”). Id. at 4-7. Because neither the

Parsons Report nor the Disability Determination Explanation (“DDE”) generated in connection with the 2015 applications that summarized and analyzed the Parsons Report was made part of the record in connection with the current applications, Plaintiff contends that this is newly discovered evidence and that the Court should order aremandpursuant to Sentence Four of § 405(g) of the Act for further consideration of it. Id. Plaintiff also argues that the Court committed an error of apprehension in interpreting the references in the treating notes of Dr. Zoe R. Billinkoff to Plaintiff’s “[m]alingering”as compelling a per sefinding of no functional mental limitations. ECF No. 22at 7-9. Put differently, Plaintiff argues that the Court’s misapprehension eliminatedthe possibility that a malingerer may still suffer from mental health

conditions that causeserious functional limitations. For the reasons that follow, Plaintiff’s motion for reconsideration is denied. I. BACKGROUND2 Over the arc of his three sets of applications –the 2010applications, the 2015 applications and the current applications –Plaintiff retained the same alleged onset date of disability, July 1, 2008. That, coupled with Plaintiff’s date last insured of September 30, 2013, has resulted in asomewhat unusual procedural posture. In brief, the current DIB application

2This background is limited to what is in issue in connection with the motion for reconsideration, which is based only onPlaintiff’smental health-based reasons for disability. looks back to the period from July 1, 2008, until September 30, 2013,which was administratively closed by the denial of the 2010 and 2015 applications.3 The current SSI application normally would look at the period from the denial of the 2015 applications to the date of the ALJ’s decision, that is, from March 4, 2016, to April 12, 2019. This would leavea gap between the DIB and the SSIperiods. However,the ALJ considered the entire period from 2008

to the date of her decision. Plaintiff’s motion for reconsideration requires the Court to reexamine the procedural travel and mental health evidence in each period. That detailed review follows. 2010 Applications. In reliance, inter alia, on an October 21, 2010, consulting examination report prepared by astate agency expert psychologist,Dr. Jorge C. Armesto, Tr. 296, Plaintiff’s 2010 applications were denied at the initial phase on December 15, 2010. Tr. 20 n.1. The denial was based on the administrativefinding that Plaintiff had no severe impairments. E.g.,Tr. 70. Dr. Armesto considered Plaintiff’s self-report that he suffered from depression, had been in special education and had been expelled in the eleventh grade, but had earned his GED. Tr. 296. Based on a mental status examination and clinical interview, Dr. Armesto assessed

Plaintiff as possessing “cognitive abilities [that] appear to be within average range of intellectual functioning” and as suffering from “[m]ild” depression. Tr. 298. Dr. Armesto’s report concludes: “[c]laimant does not appear to have mental health issues that would preclude him from managing within the community and negotiating employment-related activities.” Tr. 299. Because Plaintiff did not challenge or ask to have theadversedeterminations ofthe2010 applications reopened, they became administratively final. Tr. 20 n.1. Because of the overlap

3After an application is denied at the initial phase without a timely request for reconsideration, it becomes “administratively final.” POMS VB 02507.001B1, 2; POMS SI 04070.005 A 1. The regulations provide that such a closed application may bereopenedwithin twelvemonths, for any reason, and within two years, “if we find good cause, as defined in § 416.1489.” 20 C.F.R. § 416.1488(a), (b). Beyond two years, cases can be reopened, but only because offraud or similar fault. Id.§ 416.1488(c). There was no request to reopen either of the prior applications in this case. with the current DIB applications, the records reflecting this information from the 2010 applications werecopied into and made part of the record for the current applications. After thedenial of the 2010 applications, Plaintiff’s date last insured – September 10, 2013–passed. 2015 Applications. Two years later, on August 24, Plaintiff’s 2015 applications were

filed. Id. In connection with these applications, a consulting mental health examination was performed by Dr. Parsons,acting at the request of the Commissioner as a state agency expert.4 During Dr. Parsons’ clinical interview, Plaintiff (inaccurately) told Dr. Parsons that he “ha[d]not earned his GED.” ECF No. 22-1at 6. Dr. Parsons performed a mental status examination and administered intelligence testing. In contrast to Dr. Armesto’s finding of average intellectual functioning, the latteryielded scores placing Plaintiff in the mildly mentally retarded range. Id. at 14. Nevertheless, Dr. Parsons found that Plaintiffhad made“minimal effort and/or did not respond”and opined that the “Full Scale IQ [score]of 66. . .is not an accurate representation of his functional ability.” Id. Rather, based on other observations, Dr. Parsons concluded that

Plaintiff’ “appears capable of functioning at least within the Upper Limits of the Borderline Range of General Intelligence,” that memory testing placed him in the low average range, while his depression responses were indicative of mild to moderate problems. Id. at 14-17(emphasis added). TheParsons Report does not definitively diagnose an intellectual impairment. Instead, it assesses a “[p]rovisional”5 diagnosis of borderline intellectual functioning and depression. Id. at 17.

4Because the ALJ did not make the Parsons Report orthe 2015Disability Determination Explanation (“2015 DDE”)that summarizes it part of the record for the current applications, this description of them is drawn from the versions of the report and the DDE that Plaintiff attached to his motion to amend the judgment. 5According to the Diagnostic & Statistical Manual of Mental Disorders(“DSM-5”),a diagnosis is “provisional” when there is not enough information to make a firm diagnosis but it ispresumed that the full criteria would ultimately be met. Sharee R. v. Berryhill,CASE NO. 3:17-cv-06055-DWC, 2018 WL 4927620, at *3 (W.D. Wash. At the initial phase of the 2010 applications, the non-examining psychologist,Dr. Marsha Hahn, examined the Parsons Report and found “borderline intellectual functioning” to be a “severe” impairment, imposing mild restrictions in all spheres, except for the ability to concentrateandpersist as to which she found moderate restrictions. Id.at 7-9. Dr. Hahn’s residual functional capacity opinion assessedmarked limitations in Plaintiff’s ability to deal with

detailed instructions and moderate limitations in the ability to concentrate for extended periods, complete a full workweek and respond to workplace changes. Id. at 10-12. Otherwise, she found no significant functional limitations. Despite moderate psychological limitations,Plaintiff was found not disabled and the 2015 applications were denied on March 4, 2016. Id. at 13-14. As with the 2010 applications, Plaintiff did not challenge or ask to have these determinations reopened; therefore, they too became administratively final. Tr. 20 n.1. However, unlike the 2010 applications, nothing from the 2015 applications was copied into the record for the current applications, “as they are not within the time periods of this filing.” E.g., Tr. 70. Nevertheless, these findings did not become invisible –that is, the current DDEs list the

2015 applications and specify that they resulted in the findingof “mod psych limitations.” Id. Current Applications –Administrative Proceedings. Alleging the same onset of disability (July 1, 2008), Plaintiff’s current applications werefiled on May 2, 2018. Throughout the prosecution of these applications, Plaintiff has alleged that he is disabled because of depression and various physical impairments. As with the earlier applications, a consulting examination was conducted by a state agency expert psychologist; this one was done on June 19, 2018,by Dr. William Unger. Tr. 427. Plaintiff told Dr. Unger that he left high school in

Oct. 11, 2018). One court in this Circuit has foundthat adiagnosis labeled as provisionalshould not befound to be a medically determinable impairment. Larlee v. Soc. Sec. Admin. Comm’r, No. 2:14-cv-00228-JDL, 2015 WL 3400664, at *8 (D. Me. May 27, 2015). eleventh grade at the age of twenty-one, received special education services and had suffered from depression for approximately five years; there is no mention of the fact that he was later able to earn his GED. Tr. 428-30. Dr. Unger made observations of various aspects of Plaintiff’s cognitive and intellectual capabilities,noting variable concentration and short-term memory. Id. Nevertheless,hediagnosed only depression. Tr. 431. Hedid not diagnose any cognitive or

intellectual impairments. The current initial phase file review for mental health limitations was performed bya psychologist, Dr. Albert Hamel. Dr. Hamelrelied on Dr. Armesto’s 2010report for the DIB claim and Dr. Unger’s 2018 report for the SSI claim. WhileDr. Hamel endorsed the diagnosis of depression for both the DIB period and the SSI period, he opined to mild or no limitations. Tr. 75-77. With no severe mental impairments, Plaintiff’s current applications were denied initially. At thereconsideration phase, Plaintiff did not fare better, despite thesupplementation of therecord with evidence ofPlaintiff’s complaint to a treating source (his primary care physician) of depression resulting in a referral formental health counseling. Tr. 495. The reconsideration

record covers the follow-up with amental health counselor, licensed social worker Robin Woodburn. It reflects that Plaintiff told herhe was there because “his attorney believes he should have been determined disabled but that he needs to be seen by a psychiatrist.” Tr. 451. Ms. Woodburn found no symptoms of clinical depression, made no diagnosis, found no functional limitations and did not provide treatment. Tr. 451-52. Instead, she “referred [Plaintiff] to a psychiatrist for assistance with his disability determination.” Tr. 452. The non- examining psychologist, Dr. Lisa Fitzpatrick, reviewedthese records, together with the materials from the initial phase including the Unger report; she found depression to be a medically diagnosed impairment, but concluded that it resulted in only mild or no limitations. She opined that Plaintiff had no severe mental health impairments. Again, Plaintiff was found not to be disabled. After the denial at the reconsideration phase (and therefore not seen by either of the non- examining psychologists), Plaintiff hadfive treating appointments (from November2018 throughFebruary 2019) with a psychiatrist at Rhode Island Hospital, Dr. Zoe Billinkoff. At the

first appointment,Plaintifftold Dr. Billinkoff that he had been diagnosed with depression; that he had felt sad and down every day, “for years”and “[t]here was never a time when he wasn’t depressed”; that he is a “worrier”; that he “[h]as assaulted people”; that he dropped out of school in the eleventh grade(but omitted that he later earned his GED); and that he had received special education. Tr. 453-55. Dr. Billinkoffobserved that Plaintiff “understands questions in the most concrete terms” and that he “[c]early has cognitive limitations”; shediagnosed anxiety, depression, phobia (of bridges and tunnels) and personality disorder.” Tr. 457. She did not diagnose any cognitive or intellectual impairment. Id. Importantly, as early as the first appointment and reiterated in each of her subsequent

treating notes, Dr. Billinkoff recorded her advice to Plaintiffthat,based on his reported symptoms,“he requires [a] much greater level of psychiatric treatment,” but that, with such treatment, he “might be ABLE to work.” E.g.,Tr. 458 (emphasis in original). In response, Plaintiff told Dr. Billinkoff that he cannot and will never be able to work again, that he is not interested in treatment and is primarily motivated to obtain disability. By the second appointment, Dr. Billinkoff was including in each of her treating notes a separate paragraph that she entitled, “[m]alingering.” Tr. 460. In it, she referenced Plaintiff’s seeming focus on using her to get disability benefits and his lack of motivation to “get well,” despite statements like, “I’m focused on getting better.” Tr. 460, 464; see Tr. 459 (“he seemed ambivalent about treatment”). At the last appointment on February 28, 2019,under the heading “[m]alingering,” Dr. Billinkoff notedthatwithout “greater motivation to get well and other medication/treatment trials, his longstanding and chronic depression is unlikely to get better on its own.” Tr. 530. In her final “Plan,” Dr. Billinkoff wrote in bold: “Pt again declines another medication for depression.” Tr. 533. Dr. Billinkoff opined only to her diagnoses and malingering; she never

opined that Plaintiff has any mental health-based functional limitations. Current Applications –ALJHearing and Decision. At the hearing before the ALJ, Plaintiff was represented by counsel, who argued that his mental health impairments are depression and anxiety. Tr. 44-45. Although counsel specifically pointed out Dr. Billinkoff’s mental status observation about cognitive limitations,the attorney did not argue that Plaintiff suffered from a medically determinable cognitive or intellectual impairment nor did he ask the ALJ to develop the record further with respect to the possibility of a function-limiting cognitive or intellectual impairment. Id. In her decision, the ALJ accepted Dr. Billinkoff’s medical opinion that Plaintiff has

suffered from the medically diagnosed mental impairments of depression, anxiety, phobia and personality disorder. Tr. 23. The ALJ considered whether Plaintiff has amedically diagnosed intellectual impairment. Id. Infinding that he does not, the ALJ referenced the December 2015 “cognitive testing” results recorded by Dr. Parsons, which “showed that the claimant had a Full Scale IQ score of ‘66’ (consistent with an intellectual disability),”but that the“examiner found this score was invalid due to the claimant’s lack of effort during the testing.” Id. Therefore, the ALJ concluded that “intellectual disability is not considered a ‘medically determinable impairment.’” Id. Despite her use ofthis information in her decision, the ALJ did not specify what document she had actually reviewed nor did she exhibit theParsons Report or the 2015 DDE as part of the record for the current applications. Thus, while thecurrent record does contain the 2015 conclusion that Plaintiff had been found to have “mod psych limitations,” e.g., Tr. 70,it does not contain Dr. Parsons’ provisional diagnosis of borderline intellectual functioning or Dr. Hahn’s acceptance of the provisional diagnosis as a medically determinable impairment.

In reliance on the assessments of the non-examining psychologists, as well as onthe Armesto and Unger reports and the Woodburn and Billinkoff records,the ALJ concluded that none of Plaintiff’s mental impairments gave rise to more than mild limitations. Tr. 27-28. The ALJ carefully analyzedthe Billinkoff records, noting (correctly) that Dr. Billinkoff ultimately concludedthat “claimant is only motivated by seeking ‘disability’while not wanting to be sufficiently treated to the point where he may be able to return to work.” Tr. 26-27. The ALJ foundthat Plaintiff had not been disabled at any time from onset in 2008 to the date of her decision. Tr. 28-29. Plaintiff made a timely request forreview by the Appeals Council. Tr. 194. He did not

make any argument arising from the ALJ’s reliance on the Parsons’ Report while failing to exhibit it or the 2015 DDE as part of the record on the current applications; nor did he contend that the ALJ failed to develop the record regarding cognitive or intellectual limitations; nor did he argue that the ALJ erred in failing to find a function-limiting medically determinable cognitive or intellectual limitation. Rather, he argued only that the ALJ’s decision was not supported by substantive evidence and submitted new medical records to the Appeals Council that related only to his physical conditions. Tr. 2,194. The Appeals Council denied review. Proceedings Before the Court. Plaintiff next challenged the ALJ’s decision by filing his complaint in this Court. In his writtenarguments to the Court, he focused exclusively on the lack of substantial evidence to support the ALJ’s decision principally because she improperly gave outsized weight to Dr. Billinkoff’s earlier treating records, whileignoring that Plaintiffhad come to understand the need to focus on getting better by the later appointments. ECF No. 13. Plaintiff also attacked Dr. Billinkoff’s finding of malingering because no testing had been administered to confirm it.6 Id.at 9. No mention is made of any cognitive or intellectual

impairment; no challenge is asserted to the ALJ’s finding that Plaintiff’s “intellectual disability is not considered a ‘medically determinable impairment’”; no mention is made of the ALJ’s reference to the Parsons Report; no mention is made of the decision not to copy over anything from the 2015 applications. During the hearing on the parties’ dueling motions for summary judgment held before the Courton March 23, 2021,7 Plaintiff’s counsel specifically mentionedtheALJ’s reference to the non-exhibited Parsons report; the attorney noted rhetorically,“we don’t actually know to what extent he has an intellectual deficit.” ECF No. 21 at 21. Nevertheless, when pressed by the Court about this comment,id. (“[W]here in the record has the claimant raised lack of cognitive

capacity to work anywhere at all?”), shedid not argue that Plaintiff had ever been diagnosed with an intellectual or cognitive impairment by any treating source; she did not contend that Plaintiff actually suffers from cognitive or intellectual functional limitations that impact his

6While not directly pertinent to the motion to amend the judgment, the Court is struck anew by the lack of substance of thesearguments. In fact, at the last appointment on February 28, 2019, far from finding Plaintiff ready to focus on getting better, Dr. Billinkoff took the unusual step of recording in bold: “Pt again declines another medication for depression.” Tr. 533. Further, far from giving outsized weight to Dr. Billinkoff’s earlier records, the ALJ’s decision not only mentions notations that appear throughout the Billinkoff records but also specifically focuseson the last treating note. Tr. 26. Also troubling to the Court was the inconsistency of Plaintiff’s request for remand for further consideration of Dr.Billinkoff’s opinions,at the same time that he wasalso arguingthat at least one of Dr. Billinkoff’s opinions(her finding of malingering) was wrong and lacked an appropriate foundation. 7By the date of this hearing, Plaintiff’s attorneys had been in possession of the ALJ’s decision,with its reliance on the unexhibited 2015 Parsons Report,for almost two years. They hadbeen in possession of the record for the current applications, with its reference to the 2015 finding of moderate psychological limitations,for more than four months, that is, at least since that recordwas filedin this case on November 3, 2020. ECF No. 9. ability to work; she did not challenge the ALJ’sfinding that Plaintiff’s cognitive limits should not be considered a medically determinable intellectual impairment. Despite confirming that she was aware that theParsons Report had been relied on by the ALJ but not exhibited, counsel did not argue that it should have been exhibited; shedid not ask that the matter be continued so that the Court could reviewit.

II. STANDARD OF REVIEW The standard to warrant reconsideration pursuant to Fed. R. Civ. P. 59(e) is “very difficult”to meet. In re Fin. Oversight & Mgmt. Bd. for P.R.,998 F.3d 35, 40 (1st Cir. May 27, 2021) (internal quotation marks and citationomitted). One means to succeed is “where the movant shows . . .newly discovered evidence,” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 81-82 (1st Cir. 2008)(internal quotation marks and citation omitted), although the court may conclude in its discretion “that the moving party’s supposedly new evidence could have been presented prior to [the entry of] judgment.” Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 931 (1st Cir. 2014). Evidence that was available to the movant and thus could and should have been

presented to the Court prior to its rulingis not “newly discovered.” Parker Waichman LLP v. Salas LC, 322 F.R.D. 436, 439 (D.P.R. 2017). Amotion for reconsideration may also be granted if the court “has patently misunderstood a party . . . or has made an error not of reasoning but apprehension.” Ruiz Rivera, 521 F.3d at 82 (alteration in original) (internal quotation marks and citation omitted). For example, it would be an error of apprehension if the Court misread a medical opinion and based its ruling on the misinterpretation. See generally Cook v. Berryhill, Civil Action No. 17-cv- 11764-IT, 2019 WL 5550532, at *1-2 (D. Mass. Oct. 28, 2019). The existence of manifest injustice may also be the basis for amending a judgment, although “a finding of manifest injusticerequires a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong.” Ellis v. United States, 313 F.3d 636, 648 (1st Cir. 2002). Reconsideration is not an appropriate means “to advance arguments that could and should have been presented to the district court prior to its original ruling.” Villanueva v. United States, 662 F.3d 124, 128 (1st Cir. 2011). The Court has considerable discretion in adjudicating a

motion for reconsideration. Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d 527, 537 (1st Cir. 2011). “As a general rule, motions forreconsideration should only be exceptionally granted.” Villanueva-Mendez v. Nieves Vazquez, 360 F. Supp. 2d 320, 323 (D.P.R. 2005),aff’d, 440 F.3d 11 (1st Cir. 2006); seealso Coffel v. Astrue, Civil Action No. 11-1347-JWL, 2012WL 5831194, at *2 (D. Kan. Nov. 16, 2012) (it would be “rare indeed”to grant a Rule 59(e) motion in a Social Security case based on new evidence previously unavailable). III. RECONSIDERATION BASED ON NEWLY DISCOVERED EVIDENCE Plaintiff’s principal argument is that the Parsons Report and the 2015 DDE are “newly discovered evidence.” This argument founders because evidence that was available to a claimant

and that could readily have been presented prior to the entry of judgment is not “newly discovered” for purposes of Fed. R. Civ. P. 59(e). Tang v. Citizens Bank, N.A., 821 F.3d 206, 220 n.13 (1st Cir. 2016) (no error in rejection of reconsideration as “untimely” because evidence submitted was available long before defendants sought judgment); Biltcliffe, 772 F.3d at 931 (“new” affidavits cannot support reconsideration because information in them was previously available to plaintiff and could have been presented prior to summary judgment). In the circumstances here, whatever cognitive limitations may have affected Plaintiff’s pro secapacity to ask for access to the Parsons Report or have it exhibited as part of the record evaporated when he signed Form 1696 empowering his attorneys to do that for him. With the aid of well-qualified attorneys, Plaintiff could have asked for and received access to the 2015 application file at any time. He did not. Instead, after he engaged counsel, he pressed on, through the reconsideration phase, the hearing before the ALJ, the request for review to the Appeals Council and prosecuted the case in this Court, yet he did not ever ask for access to these materials, did not ask that any materials from the 2015 application be exhibited and did not argue

that he has beendisabled by the limiting effect of a medically determinable cognitive or intellectual impairment. Afterthe ALJ issued her decision finding thatPlaintiff’s intellectual capacity is not amedically determinable impairment and specifically referencedthe Parsons Report, yet failed to exhibit it, Plaintiff’s counsel became fully conscious of its existence,at least some of its pertinent content (an IQ score in the mentally retarded range) and its ready availability as part of the prior claim file. Still theydid not ask for it or ask to have it exhibited, as the case moved to the Appeals Council and then was filed and prosecuted in this Court. Nor did they challengethe ALJ’s finding of no medically determinable intellectual impairment based on the Parsons Report.

The conclusion that the content of a prior claim file cannot qualify as “newly discovered evidence” for purposes of Fed. R. Civ. P. 59(e) is consistent with the analysis in analogous cases examining whether theprior claim file can be viewed as “new” for purposes of a Sentence Six remand. Based on analogous reasoning –that the content of a prior claim file is fully available to a claimantand could readily have been presented prior to the ALJ’s decision – these cases hold that the content of a prior claim file that was omitted from the current record is simply not “new.” SeeCaleb B. v. Berryhill, No. 2:17-cv-00322-DBH, 2018 WL 3207589, at *3 (D. Me. June 30, 2018),adopted, 2018 WL 3715702 (D. Me. Aug. 3, 2018)(content of prior claim file that resulted in administratively final determination adverse (to claimant) is not “new” for purposes of a Sentence Six remand); Crist v. Astrue, No. 8:06-cv-1587-T-26TBM, 2008 WL 821934, *6-8(M.D. Fla. Mar. 26, 2008) (because prior claim file is fully available to claimant during administrative proceedings on subsequent application, ALJ’s failure to exhibit parts or all ofit insubsequent record cannot be basis for Sentence Six remand for consideration of “new” evidence). These cases are persuasive with respect to the analogous issue in the Fed. R. Civ. P.

59(e) context and compel the same conclusion –that the nonexhibited content of a prior claim file simply is not “new” to a Social Security claimant who had access to it. Plaintiffattempts to frame the Parsons Report as “newly discovered” by arguing that it was the ALJ’s duty to develop the record by exhibiting it. This misses the point. Plaintiff is right that the ALJ’s failure to exhibit the Parsons Report is contrary to HALLEX I-2-6-58, which requires that an ALJ “will generally admit into the record any evidence that he or she determines is material,” to HALLEX I-2-1-13(F), which requires that, “[w]hen an ALJ relies on information from a prior claim(s) file, the ALJ will make the evidence part of the record in the pending claim,” andto 20 C.F.R. § 404.951(b), which requires that an ALJ must base the decision on

evidence “contained in the record, either directly or by appropriate reference.” The issue before the Court is not whether the Parsons Report and 2015 DDE should have been exhibited (they should have been) but whether Plaintiff’s reliance on that failure was timely asserted. It was not. Based on the foregoing, neither the Parsons Report northe 2015 DDE is“newly discovered evidence” as the term is used in Fed. R. Civ. P. 59(e). Therefore, Plaintiff’s motion toamend the judgment on that ground is unavailing. IV. RECONSIDERATION BASED ON ERROR OF APPREHENSION During argument before the Court, Plaintiff’s counsel tackled Dr. Billinkoff’s “[m]alingering” finding by attacking it as wrong and byarguingthat “even a high likelihood of malingering does not preclude severe limitations resulting from a genuine medically determinable impairment.” ECF No. 21 at 24. Plaintiff now argues that the Court disregarded the latterargument and affirmed the ALJ’s Billinkoff findings by applying the incorrect principle that,oncea medical source finds “malingering,” an adjudicator may ignore any other diagnoses orfindings of functional limitations that themedical source might have made despite

malingering. Whether this is more properly characterized as a manifest error of law rather than anerror of apprehension does not matter. The factual predicate is not correct. For starters, the ALJ did not reject Dr. Billinkoff’s other findings because of herfinding of“[m]alingering.” To the contrary, the ALJ’s Step Two finding regarding Plaintiff’s medically determinable impairments goes beyond depression, as found by Drs. Hamel and Fitzpatrick, to include the additional conditions diagnosed only by Dr. Billinkoff. Andthe ALJ listed Dr. Billinkoff (and Ms. Woodburn) with the sources that shefound to be persuasive. Nevertheless, the ALJ supportably found that none of these impairments significantly limited Plaintiff’s ability to perform basic work. Importantly, this finding is not based onthe ALJ’s rejection of anything

contained in the findings made by Dr. Billinkoff (or any other source of record)because Dr. Billinkoff never opined that theimpairments she diagnosed resulted in functional limitations. Instead, Dr. Billinkoff’s only statement regarding work is her memorialization of her advice to Plaintiff that, if his symptoms are as serious and limiting as he describes, treatment might well eliminate any such limitations. TheALJ’s appropriate consideration of the Billinkoff records, inter alia,resultedin the Court’s finding that the ALJ’s determination ofthe limiting effects of Plaintiff’s mental health conditions was firmly anchored in substantial evidence. This was not based on the misapprehension that Dr. Billinkoff’s finding of “[m]alingering” permitted the ALJ to ignore Dr. Billinkoff’s other findings. Rather,the Court’s ruling rested on the conclusion that the ALJ properly analyzed the Billinkoff records, resulting in herwell-supported finding of various impairments, but nonethat causes more than mild mental health limitations. Id. at 38. Therefore, judgment entered in favor of the Commissioner. This holding was not tainted by anymisapprehension or a manifest error of law affording

inappropriate weight to a qualified medical source’s finding of “[m]alingering.” Therefore, Plaintiff’s Fed. R. Civ. P. 59(e) motion based on misapprehension is denied. V. RECONSIDERATION BASED ON MANIFEST INJUSTICE In his post-hearing brief, Plaintiff arguedfor the first time that the ALJ’s reliance on the Parsons Report without exhibiting either it or the 2015 DDE resulted in an outcome for this claim that is contrary to the interests of justice. ECF No. 31 at 3. In the Fed. R. Civ. P. 59(e) context, this suggests that Plaintiff now seeks to argue that amendment of the judgment is necessary to avoid“manifest injustice.” Ellis, 313 F.3d at 648. Because it comes too late, the Court could disregard this argument. SeeUnited States v. Zannino, 895 F.2d 1, 16 (1st Cir.

1990)(failure to bring issue to trial court’s attention in timely fashion and ask for “concinnous relief[,]” “constitutes a waiver”). Nevertheless, with Dr. Hahn’s 2015finding that theParsons provisional diagnosis was enough to establish a “medically determinable impairment,” the ALJ’s use of the Parsons Report as her support for thefinding of no intellectual medically determinable impairment is troublesome. Mindful that courts should ensure a just outcome in Social Security disability claims, Mary K v. Berryhill, 317 F. Supp. 3d 664, 667 (D.R.I. 2018), despite the waiver, the Court considers whether this case presents the“extraordinary circumstances”that wouldjustify revisiting a prior decision. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). It does not. Plaintiff’s argument of injustice rests on theproposition that his disability claim is being denied without consideration that he is seriouslylimited bya “newly discovered” cognitive/intellectual impairment (borderline intellectual functioning) of “lifelong duration.” This proposition fails as the foundation for a finding ofmanifest injustice for two reasons. First, anintellectual/cognitive impairment of “lifelong duration” serious enough to preclude work is

belied by Plaintiff’s ability to earn his GED, Tr. 57, and to work at unskilled and semi-skilled jobs consistently from 1996 until he stopped working in 2008. Tr. 63-64,212. Second and more importantly, over theperiod of alleged disability from 2008 to the present,the Commissioner has devoted considerable resources toconsideration ofthe possibility that Plaintiff has a cognitive/intellectual impairment. That is, since 2010, Plaintiff has been examined by three well-qualified expert state agency psychologists, Dr. Armesto, Dr. Parsons and Dr. Unger; he has also been examined by a well-qualified treating psychiatrist, Dr. Billinkoff. All four specifically focused on Plaintiff’s intellectual and cognitive functioning. Three (Drs. Armesto, Unger and Billinkoff) did not diagnose anyintellectual or cognitive impairment. Of these, one (Dr.

Armesto)affirmatively opined that Plaintiff could work, while another (Dr. Billinkoff) opined that, with treatment for anxiety and depression, Plaintiff might be able to work. Only Dr. Parsons, whose results weretainted by Plaintiff’s minimal effort during testing and potentially by Plaintiff’s provision of inaccurate information (“has not earned his GED”), opined to a cognitive impairment. However, Dr. Parsons’ultimate diagnosis not only was “provisional,” but it placed Plaintiff “at least” in the upper limits of the borderline range. Accepting this provisional diagnosis as a medically determinable impairment,the Commissioner foundthat Plaintiff would beable to work even iflimited to functioning in theborderline intellectual rangein connection with the 2015 applications. Plaintiff has not asked to reopen or otherwise challenged this finding. At bottom, Plaintiff has beenrepresented by able and experienced legal counsel in connection with the current applications yet there is no evidence of amedically determinable cognitive or intellectual impairment that has caused work-precluding functional limitations.

While the ALJ clearly erred in failing to exhibit the Parsons Report and the 2015 DDE, that is an error that “could and should have been presented to the district court prior to its original ruling.” Villanueva, 662 F.3d at 128. Moreover, when the Court exercises its “considerable discretion in adjudicating a motion for reconsideration,” Feliciano-Hernandez, 663 F.3d at 537, byviewing the errorin the context of this case as above, far from injustice, it does not appear to have resulted in prejudice. Therefore, the Court’s judgment affirming the ALJ’s decision –despite the Court’s lack of the unexhibited Parsons Report with its provision diagnosis of borderline intellectual functioning and the unexhibited 2015 DDE with its finding ofmoderate functional limitations –didnot result in manifest injusticeand should not be amended.

VI. CONCLUSION For the reasons outlined above, Plaintiff’s Fed. R. Civ. P. 59(e) motion to amend judgment (ECF No. 22)is denied. /s/ Patricia A. Sullivan PATRICIA A. SULLIVAN United States Magistrate Judge July 19,2021