CHRISCOE v. COLVIN
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/08/2015; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED under sentence four of 42 U.S.C. § 405(g) for further consideration of Plaintiff's Medicaid decision in accordance with the evidence and procedures discussed in this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings [Doc. # 15 ] should be DENIED, and Plaintiff's Motion for Judgment Reversing the Commissioner [Doc. # 13 ] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PATRICIA A. CHRISCOE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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1:13CV788
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Patricia A. Chriscoe, brought this action pursuant to Sections 205(g) and
1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and
1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social
Security denying her claims for Disability Insurance Benefits and Supplemental Security
Income under, respectively, Titles II and XVI of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for
review.
I.
PROCEDURAL HISTORY
Plaintiff filed her applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income Benefits (“SSI”) on March 4, 2010, alleging a disability onset
date of March 1, 2008. (Tr. at 191-202.)1 Her applications were denied initially (Tr. at 81106, 131-35) and upon reconsideration (Tr. at 107-30, 137-45).
Thereafter, Plaintiff
1 Transcript citations refer to the Sealed Administrative Transcript of Record [Doc. #s 10-11].
requested a hearing before an Administrative Law Judge (“ALJ”) (Tr. at 146-47), which she
attended on March 15, 2012, along with her attorney (Tr. at 9). The ALJ ultimately issued a
decision finding that Plaintiff was not disabled under the meaning of the Act (Tr. at 19), and
on July 23, 2013, the Appeals Council denied Plaintiff’s request for review, thereby making
the ALJ’s conclusion the Commissioner’s final decision for purposes of judicial review (Tr.
at 1-3).
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial
of social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However,
“the scope of . . . review of [such an administrative] decision . . . is extremely limited.” Frady
v. Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir.
1993) (quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a
mere scintilla of evidence but may be somewhat less than a preponderance.” Mastro v.
Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted).
“If there is evidence to justify a refusal to direct a verdict were the case before a jury, then
there is substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
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“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of
the [ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted).
“Where conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472
(internal brackets omitted).
“The issue before [the reviewing court], therefore, is not
whether [the claimant] is disabled, but whether the ALJ’s finding that [the claimant] is not
disabled is supported by substantial evidence and was reached based upon a correct
application of the relevant law.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). In this context, “disability” means the “‘inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.’” Id. (quoting 42 U.S.C.
§ 423(d)(1)(A)).2
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
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“The Social Security Act comprises two disability benefits programs. The Social Security Disability
Insurance Program . . . provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . provides benefits to indigent disabled persons.
The statutory definitions and the regulations . . . for determining disability governing these two programs are,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
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Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if
not, could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’
disabled. If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at each of the first two
steps, and establishes that the impairment “equals or exceeds in severity one or more of the
impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”
Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at
step three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or exceed a
listed impairment, the ALJ must assess the claimant’s residual functional capacity (‘RFC’).”
Id. at 179.3 Step four then requires the ALJ to assess whether, based on that RFC, the
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“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work setting on a regular and
continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an equivalent work schedule” (internal
emphasis and quotation marks omitted)). The RFC includes both a “physical exertional or strength
limitation” that assesses the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy work,” as
well as “nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to
be determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant’s impairments and
any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
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claimant can “perform past relevant work”; if so, the claimant does not qualify as disabled.
Id. at 179-80. However, if the claimant establishes an inability to return to prior work, the
analysis proceeds to the fifth step, which “requires the Commissioner to prove that a
significant number of jobs exist which the claimant could perform, despite [the claimant’s]
impairments.” Hines, 453 F.3d at 563. In making this determination, the ALJ must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to
adjust to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry
its “evidentiary burden of proving that [the claimant] remains able to work other jobs
available in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial
gainful activity” since her alleged onset date. Plaintiff therefore met her burden at step one
of the sequential analysis. At step two, the ALJ further determined that Plaintiff suffered
from the following severe impairments: seizure disorder, mood disorder/major depressive
disorder, history of substance abuse/alcohol dependence, hypertension, and right-sided
axonal neuropathy. (Tr. at 11.) The ALJ found at step three that none of these impairments
met or equaled a disability listing.
Therefore, the ALJ assessed Plaintiff’s RFC and
determined that she could perform light work with myriad postural, mental, and
environmental restrictions. (Tr. at 13.) Based on this determination, the ALJ found under
step four of the analysis that Plaintiff could not return to her past relevant work. (Tr. at 17.)
However, he concluded at step five that, given Plaintiff’s age, education, work experience,
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and RFC, Plaintiff could perform other jobs available in the community and therefore was
not disabled. (Tr. at 18-19.)
Plaintiff now argues that the ALJ failed to:
(1) discuss whether Plaintiff’s
impairments meet or equal Listing 11.14 for peripheral neuropathy, (2) properly evaluate
Plaintiff’s credibility when assessing her RFC, and (2) properly consider the disability
determination of another agency, that is, the North Carolina Department of Health and
Human Services’ (“NCDHHS”) approval of Plaintiff’s Medicaid application in December
2011. For the reasons discussed below, the Court concludes that the ALJ’s decision in this
case did not adequately address the disability determination of another agency as required by
Social Security Ruling (“SSR”) 06-03p. Because remand is required on this basis, the Court
need not consider the additional issues raised by Plaintiff at this time.
As provided at 20 C.F.R. § 404.1504 and further explained in Social Security Ruling
(“SSR”) 06-03p, “a determination made by another agency that [the claimant is] disabled or
blind is not binding on” the Social Security Administration (“SSA”). Rather, “the ultimate
responsibility for determining whether an individual is disabled under Social Security law
rests with the Commissioner.” SSR 06-03p, 2006 WL 2329939, at *7. Nevertheless, the SSA
is “required to evaluate all the evidence in the case record that may have a bearing on [its]
determination or decision of disability, including decisions by other governmental and
nongovernmental agencies (20 C.F.R. §§ 404.1512(b)(5) and 416.912(b)(5)).
Therefore,
evidence of a disability decision by another governmental or nongovernmental agency
cannot be ignored and must be considered.” Id. at *6. Moreover, “the adjudicator should
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explain the consideration given to these decisions in the notice of decision for hearing
cases.” Id. at *7.
Here, Defendant contends that, because “the record does not contain a disability
decision by another governmental agency as contemplated by the regulations, . . . the ALJ
committed no error by omitting Plaintiff’s receipt of Medicaid benefits from the decision.”
(Def.’s Br. [Doc. #16] at 10.) In support of this contention, Defendant argues that evidence
that an individual may have received Medicaid benefits at some time is not sufficient,
standing alone, to indicate the existence of another agency decision entitled to consideration.
Defendant further contends that Plaintiff’s Medicaid card does not constitute evidence of a
disability determination by another agency, and that the record is insufficient to invoke the
requirements of SSR 06-03p where “[t]here is no record of any evidence considered by
[NCDHHS]” and “no record of the reasoning behind a decision to grant Plaintiff Medicaid
benefits. (Def. Br. at 10 (citing Lafferty v. Astrue, 559 F.Supp.2d 993, 1010 (W.D. Mo.
2008) (noting that the only evidence in the record regarding any other agency decision was a
copy of the claimant’s Medicaid card, that there was no evidence relied upon by Medicaid
that was ignored by the ALJ, and that whether the claimant meets SSA eligibility requires is
an inquiry different that a state’s Medicaid eligibility requirements), Davis v. Colvin, 3:13CV-189-RJC-DSC, 2014 WL 868709, at *2 (W.D.N.C. Mar. 5, 2014) (unpublished) (holding
that the claimant’s testimony during the hearing, absent any evidence in the record of a
Medicaid determination, was not evidence of a determination by Medicaid or DMA, but
further holding that the ALJ did consider opinion evidence “in accordance with the
requirements of SSR06-3p” (internal brackets omitted)); McDowell v. Astrue, No.
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3:11CV652-RJC-DSC, 2012 WL 4499336, at *3 (W.D.N.C. Aug. 2, 2012) (unpublished)
(holding that a home health services document in the record was not sufficient evidence of
another agency determination, absent any evidence of any decision by Medicaid or any other
agency finding Plaintiff disabled, and further holding alternatively that “[a]ssuming arguendo
that the record contained evidence of a disability decision by Medicaid or DMA, the ALJ
adequately considered such evidence” ).)
In contrast to the cases cited by Defendant, the record in the present case contains
Plaintiff’s Notice of Application Approval from the Chatham County, North Carolina
Department of Social Services and a copy of Plaintiff’s Medicaid Identification Card, both of
which are dated within the disability period in question. (Tr. at 211.) The Application
Approval notes that her “Aid Program Category” is MAD, an apparent reference to
Medicaid Aid to the Disabled. At the hearing, the ALJ further questioned Plaintiff about her
Medicaid status, confirming that Plaintiff got “a decision in the mail where [the NCDHHS]
found [her] disabled under the same standard [as the SSA] really but just for Medicaid
purposes.” (Tr. at 36.) Indeed, the ALJ, not the Plaintiff, voiced the “same standard”
language when referring to the Medicaid decision. Although the above evidence clearly put
the ALJ on notice that another agency had found Plaintiff disabled, the ALJ made no effort
to obtain a copy of that decision or further consider Plaintiff’s Medicaid approval when
evaluating her case. Compare Woodall v. Colvin, No. 5:12-CV-357-D, 2013 WL 4068142, at
*5, n.3 (E.D.N.C. Aug. 12, 2013) (unpublished) (instructing the Commissioner to obtain a
copy of the claimant’s previously-referenced Medicaid decision on remand). In fact, the ALJ
omitted any mention of Plaintiff’s Medicaid status from his decision, and unlike the cases
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cited by Defendant, there is no basis for the Court here to alternatively conclude that the
ALJ did adequately consider this evidence.
In considering this issue, the Court also notes that several months after the ALJ
denied Plaintiff’s disability claims, the Fourth Circuit issued its decision in Bird v.
Commissioner of Social Sec. Admin., 699 F.3d 337 (4th Cir. 2012), clarifying the
Commissioner’s obligations under 20 C.F.R. § 404.1504 and SSR 06-03p. Specifically, the
Fourth Circuit concluded that “in making a disability determination, the SSA must give
substantial weight to [another agency’s] disability rating,” and “an ALJ may give less weight
to [that agency’s] disability rating when the record before the ALJ clearly demonstrates that
such a deviation is appropriate.” Bird, 699 F.3d at 343 (emphasis added). Although Bird
involved a decision by the Veterans Administration (“VA”) rather than the NCDHHS,
subsequent case law within the Fourth Circuit has explicitly extended the holding in Bird to
Medicaid decisions, noting that both the Medicaid and VA disability programs share
markedly similar standards and requirements with the DIB and SSI programs at issue here.
See, e.g., Harvey v. Colvin, No. 5:13CV00074, 2014 WL 4093483, at *5 (W.D. Va. Aug. 18,
2014) (unpublished) (“[T]he state agency’s determination that [claimant] is disabled for
purposes of Medicaid may provide relevant evidence that the Commissioner should
consider.”); Baughman v. Colvin, No. 5:13-CV-143-FL, 2014 WL 3345030, at *7-8
(E.D.N.C. July 8, 2014) (unpublished) (remanding case for failure to explain consideration
given to Medicaid decision, where “[a]pplying the same regulations governing SSA
determinations, the NCDHHS determined that Claimant was limited to performing
sedentary work, which resulted in a directed finding of disabled”); Allen v. Colvin, No. 2:129
CV-29-FL, 2013 WL 3983984, at *2 (E.D.N.C. Aug. 1, 2013) (unpublished) (remanding to
allow SSA to “give appropriate consideration to the NCDHHS Medicaid Determination”);
Caraballo v. Colvin, No. 4:12-CV-125-D, 2013 WL 3197070, at *3-4 (E.D.N.C. June 21,
2013) (unpublished) (“Failure to discuss a Medicaid decision requires remand.”); Gaskins v.
Colvin, No. 3:12-CV-81, 2013 WL 3148717, at *3-4 (N.D. W. Va. June 19, 2013)
(unpublished) (holding that even if the evidence of the Medicaid decision is “conclusory,”
“the Social Security Administration’s own internal policy interpretation rulings affirmatively
require[] the ALJ to consider evidence of a disability decision by another governmental
agency,” and these regulations “do not limit the required review of other agency’s disability
determinations to cases where the decision is substantive” because “to the extent that
Medicaid decisions employ the same standards as the Social Security Administration uses in
disability determinations, such decisions are probative in situations such as the instant one
where an agency has applied the same rules yet reached the opposite result from the Social
Security Administration” (internal quotations and brackets omitted)).
In the present case, as in Bird, the previous agency decision “resulted from an
evaluation of the same condition[s] and the same underlying evidence that was relevant to
the decision facing the SSA.” Bird, 699 F.3d at 343. In fact, as noted above, the ALJ stated
as much during Plaintiff’s hearing. (Tr. at 36.) Nevertheless, the ALJ failed to even mention
Plaintiff’s Medicaid award in his decision. Because, based on the record presented, the Court
cannot determine whether the ALJ considered and discounted the evidence on which the
Medicaid decision was based, the ALJ’s failure to consider the award of Medicaid benefits to
the Plaintiff cannot be said to constitute harmless error. See Grogan v. Barnhart, 399 F.3d
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1257, 1263 (10th Cir. 2005) (citing SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)) (“[T]he
district court may not create post-hoc rationalizations to explain the Commissioner’s
treatment of evidence when that treatment is not apparent from the Commissioner’s
decision itself.”); Newman v. Colvin, No. 5:12CV739-BO, 2013 WL 6501165 (E.D.N.C.
Dec. 11, 2013). Accordingly, this case merits remand under 42 U.S.C. § 405(g). When
reviewing the case on remand, the ALJ should also consider each of Plaintiff’s additional
allegations of error.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED under sentence four of
42 U.S.C. § 405(g) for further consideration of Plaintiff’s Medicaid decision in accordance
with the evidence and procedures discussed in this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #15] should be DENIED, and
Plaintiff’s Motion for Judgment Reversing the Commissioner [Doc. #13] should be
GRANTED. However, to the extent that Plaintiff’s motion seeks an immediate award of
benefits, it should be DENIED.
This, the 8th day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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