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

(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,

(1st Cir. 1982).

As stated in Mumford v. Bowen,

(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

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

(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.

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

(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.

7