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Harrell v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

July 30, 2014

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


ROBERT S. BALLOU, Magistrate Judge.

Plaintiff John David Harrell ("Harrell") filed this action challenging the final decision of the Commissioner of Social Security ("Commissioner") determining that he was not disabled and therefore not eligible for supplemental security income ("SSI"), and disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433, 1381-1383f. Specifically, Harrell alleges that the ALJ erred by awarding a closed period of benefits, and finding that he was no longer disabled as of July 16, 2011. Harrell also alleges that a consultative opinion submitted to the Appeals Council constitutes new, material evidence necessitating remand. I agree that evidence submitted to the Appeals Council is new, material and should be considered by the ALJ. As such, I RECOMMEND GRANTING IN PART Harrell's Motion for Summary Judgment (Dkt. No. 11), DENYING the Commissioner's Motion for Summary Judgment. (Dkt. No. 16), and reversing and remanding this case pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Report and Recommendation.


This court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that Harrell failed to demonstrate that he was disabled under the Act.[1] Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990).


Harrell protectively filed for SSI and DIB on June 15, 2009, claiming that his disability began on June 8, 2008.[2] Administrative Record, hereinafter "R." 232. The Commissioner denied the application at the initial and reconsideration levels of administrative review. R. 78-135. On November 1, 2011, ALJ Thomas W. Erwin held a hearing to consider Harrell's disability claim. R. 44-77. Harrell was represented by an attorney at the hearing, which included testimony from Harrell, his wife Carol, and vocational expert, Ashley Wells. R. 44-77.

On December 13, 2011, the ALJ entered his decision analyzing Harrell's claim under the familiar five-step process.[3] The ALJ entered a partially favorable decision, granting Harrell a closed period of benefits from June 8, 2008 to July 16, 2011. R. 17-34. The ALJ found that Harrell suffered from the severe impairments of polysubstance abuse, and the following mental conditions: history of attention deficit disorder, anxiety, mood disorder, and psychotic disorder versus schizophrenia. R. 25. The ALJ found that these impairments, either individually or in combination, did not meet or medically equal a listed impairment. R. 25. The ALJ further found that as of June 17, 2011, Harrell had the RFC to perform a full range of work at all exertional levels, with the qualification that he cannot (i) be exposed to hazards; (ii) climb ladders, ropes or scaffolds; (iii) perform work that consists of more than simple, routine, repetitive unskilled tasks in a low stress environment; (iv) perform work that involves more than occasional decision making or changes; (v) perform work that involves production rate, or pace work with strict predication standards; or (vi) perform work that involves more than occasional contact with supervisors, co-workers, or the public. R. 32. The ALJ determined that Harrell could not return to his past relevant work, but that he could work at jobs that exist in significant numbers in the national economy, such as night cleaner and laundry folder. R. 33. Thus, the ALJ concluded that he was not disabled after a closed period of benefits ending on June 16, 2011. R. 34.

Harrell requested that the Appeals Council review the ALJ's decision and submitted with his brief a psychological report prepared by Pamela S. Tessnear, Ph.D. R. 315-24. On February 1, 2013, the Appeals Council denied Harrell's request for review (R. 1-6), and this appeal followed.


The ALJ granted Harrell a closed period of disability from June 8, 2008 to July 16, 2011. Thus, the ALJ necessarily found that, beginning in 2008, the limitations caused by Harrell's mental conditions prevented him from working. The ALJ further concluded that Harrell's mental condition improved by July 17, 2011, to the extent that he was capable of re-entering the workforce. Thus, the focus in this case is on the evidence that Harrell's mental condition improved in July 2011, and whether that improvement is sustainable long-term. Harrell argues that the ALJ's determination that his mental condition improved in July 2011 to the point that he was capable of competitive employment is not supported by substantial evidence. Harrell further asserts that the report of Dr. Tessnear, submitted to the Appeals Council, is new, material evidence that warrants remand of this case to the Commissioner under 42 U.S.C. § 405(g). After careful review of the record, I agree with Harrell that Dr. Tessnear's report is new, material, and relevant evidence; and thus, it is appropriate to remand this case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for consideration of Dr. Tessnear's opinion.

Harrell was born in August 1975, and has a high school education. R. 46, 78. Harrell previously worked an assortment of short-term, unskilled jobs. R. 33, 114-16. Harrell has a lengthy history of mental illness, including anxiety, mood disorder, psychotic disorder, and attention deficit hyperactivity disorder. R. 329-48. Harrell also has a history of drug and alcohol abuse, although he testified at the administrative hearing that he had been clean for the past year. R. 47. He has been hospitalized for his mental health and drug abuse issues multiple times, most recently in January 2011. R. 359-95, 606-16.

Harrell's medical records reflect fluctuations in his mental health condition throughout the relevant period. For example, on September 14, 2007, Harrell visited Jasdeep Miglani, M.D., for his anxiety and panic disorder. Harrell was stable at that time, even noting that his medication helped him to stay focused at work and he had been functioning at his job with "great success lately." R. 334. A year later, in October 2008, Harrell followed up with David Dalrymple, M.D., and reported being off his medication and having difficulty staying focused, keeping jobs and interacting with people. He also described agoraphobic-type symptoms and anxiety. R. 333. His mental status exam reflected a blunted affect, militaristic-type speech, scrambled thought processes, and content consistent with generalized anxiety disorder. R. 333. Dr. Dalrymple restarted Harrell on medications for anxiety and panic disorder and recommended that he see a therapist. R. 333.

In January 2009, Harrell was seen for a follow up and was "doing well." Harrell stated that his anxiety was under good control. R. 331. Three months later, on April 2, 2009, Harrell appeared for a routine appointment, and was extremely agitated and overtly delusional, talking about people watching him from the television set. R. 330. This began the first of three involuntary hospitalizations for mental health issues over a two month period. R. 359-395.

On March 15, 2010, Harrell visited psychiatrist Paul DeLapp, M.D., and reported that he was "much better" with medication, and felt stable. R. 574. His family physician noticed a significant difference in behavioral outbursts since he started a new medication, and his mental status examination was normal. R. 574. Two months later, Harrell presented to Dr. DeLapp in moderate distress, with an anxious mood and hostile affect. He reported continuation of ...

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