REAP v. COLVIN
Filing
16
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 03/19/2018 that the Commissioner's decision finding no disability is REVERSED, and that the matter is REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g ). The Commissioner's Motion for Judgment on the Pleadings 13 is DENIED and Plaintiff's Motion for Judgment 10 is GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, it is DENIED. (Coyne, Michelle)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL D. REAP,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
1:16CV1139
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff, Michael D. Reap 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 review of a final decision of the Commissioner of Social
Security (“Commissioner”) denying his claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”) under Titles II and XVI of the Act. The court has before
it the certified administrative record1 and cross-motions for
judgment, and this matter is now ripe for adjudication. After a
careful consideration of the evidence of record, the Decision of
Transcript citations refer to the Administrative
Transcript of Record filed manually with the Commissioner’s
Answer. (Doc. 8.)
1
the Administrative Law Judge (“ALJ”), and the governing legal
standard, this court finds that remand is proper.
I.
BACKGROUND
Plaintiff filed applications for DIB and SSI in January of
2012 alleging a disability onset date of December 31, 2005.
(Tr. at 470-82.) The applications were denied initially and
again upon reconsideration. (Id. at 394-411, 419-36.) After an
evidentiary hearing, the ALJ determined on August 14, 2014, that
Plaintiff was not disabled under the Act. (Id. at 272-95.)
Specifically, the ALJ concluded that (1) Plaintiff had not
engaged in substantial gainful activity during the relevant
period; (2) his severe impairments included degenerative joint
disease, degenerative disc disease, obesity, hypertension, mood
disorder, anxiety disorder, and history of substance abuse and
dependence; (3) he did not meet or equal a listed impairment;
(4) he could perform light work, but would also need a sit/stand
option on an occasional basis; he could only occasionally climb
balance, stoop, crouch, kneel, or crawl; he should have no
concentrated exposure to hazards such as moving machinery or
unprotected heights; he is further limited to unskilled work in
a job with no more than occasional public contact in a work
environment with a non-productive pace; and (5) he was able to
perform his past relevant work, and there were, in the
-2-
alternative, also jobs he could perform. (Tr. at 277-90.)
Plaintiff requested that the Appeals Council review the ALJ’s
decision and the Appeals Council denied Plaintiff’s request for
review, making the ALJ’s determination the Commissioner’s final
decision for purposes of review. (Id. at 1-6.)
II.
LEGAL STANDARD
Federal law authorizes judicial review of the Commissioner’s
denial of social security benefits. 42 U.S.C. § 405(g); Hines v.
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the scope of
review of such a 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 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 quotation 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
-3-
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).
“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 and quotation marks omitted).
In undertaking this limited review, this court notes that
“[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)).
-4-
“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
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 [his]
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 the first two steps, and if the claimant’s impairment meets
or equals a “listed impairment” at step three, “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
-5-
to equal or exceed a listed impairment,” then “the ALJ must
assess the claimant’s residual functional capacity (‘RFC’).”
Id. at 179.2
Step four then requires the ALJ to assess whether, based on
that RFC, the 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 [Government] 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
“RFC is a measurement of the most a claimant can do
despite [the claimant’s] limitations.” Hines v. Barnhart, 453
F.3d 559, 562 (4th Cir. 2006) (citation 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 v.
Harris, 658 F.2d 260, 265 (4th Cir. 1981). “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.
2
-6-
“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 567.3
III. ANALYSIS
In pertinent part, Plaintiff contends that the Appeals
Council materially erred here in its analysis of a Medicaid
decision issued by the North Carolina Department of Health and
Human Services (“NCDHHS”) finding Plaintiff disabled and
entitled to Medicaid as of May 2014. (Pl.’s Mem. in Supp. of
Mot. for J. Reversing or Modifying the Decision of the
Commissioner of Social Security, or Remanding the Cause for a
Hearing (Doc. 11) at 3.)
A.
The NCDHHS Medicaid Decision Requires Remand
Under the regulations, disability decisions by other
governmental agencies are not binding on the SSA. 20 C.F.R.
§§ 404.1504, 416.904. Nevertheless, such disability
determinations are “entitled to consideration by the Secretary.”
DeLoatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983);
Watson v. Astrue, No. 5:08–CV–553–FL, 2009 WL 2423967, at *2
A claimant thus can qualify as disabled via two paths
through the five-step sequential evaluation process. The first
path requires resolution of the questions at steps one, two, and
three in the claimant’s favor, whereas, on the second path, the
claimant must prevail at steps one, two, four, and five.
3
-7-
(E.D.N.C. Aug. 6, 2009) (unpublished). Social Security Ruling
(“SSR”) 06–03p identifies Medicaid decisions as “other-agency
evidence” and specifies that “the adjudicator should explain the
consideration given to these decisions in the notice of decision
for hearing cases and in the case record for initial and
reconsideration cases.” SSR 06–03p, 2006 WL 2329939, at *7
(Aug. 9, 2006).4
Moreover, in Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d
337, 343 (4th Cir. 2012), the Fourth Circuit held that although
another agency’s “decision is not binding on the SSA. . . .
[U]nder the principles governing SSA disability determinations,
another agency’s disability determination cannot be ignored and
must be considered.” (Id.) (internal citation and quotation
The court notes that for claims filed after March 27,
2017, this regulation has been amended and Social Security
Ruling 06-03p has been rescinded. The new regulation provides
that the Social Security Administration “will not provide any
analysis in our determination or decision about a decision made
by any other governmental agency or a nongovernmental entity
about whether you are disabled, blind, employable, or entitled
to any benefits.” 20 C.F.R. § 416.904; 82 Fed. Reg. 5844, 5845
(Jan. 18, 2017). The claims in the present case were filed
before March 27, 2017, and the court has therefore analyzed
Plaintiff’s claims pursuant to the guidance set out above.
See, e.g., Barroso v. Berryhill, No. 1:16CV1224, 2018 WL
1115725, at *3 n.5 (M.D.N.C. Feb. 27, 2018) (unpublished)
(noting that SSR 06-03p has been rescinded but only for those
claims filed after March 27, 2017) (citations, quotations
omitted), Report and Recommendation adopted by 1:16CV1224,
Judgment (M.D.N.C. Mar. 14, 2018).
4
-8-
marks omitted). The Fourth Circuit reasoned that the disability
assessments of other agencies serve the same governmental
purpose of providing benefits to persons unable to work,
evaluating a claimant’s ability to perform full-time work,
analyzing a claimant’s functional limitations, and requiring
extensive medical documentation to support the claims. Id.
Consequently, to satisfy SSR 06-03p and Bird, an
adjudicator must meaningfully articulate how substantial
evidence supports a conclusion that the disability determination
of another agency is entitled to limited or no weight. See Bird,
699 F.3d at 343; Adams v. Colvin, No. 5:14-CV-689-KS, 2016 WL
697138, at *4 (E.D.N.C. Feb. 22, 2016) (unpublished) (SSR 06-03p
requirement not met where ALJ failed to explain the
consideration given to claimant’s Medicaid disability finding in
the RFC); Hildreth v. Colvin, No. 1:14CV660, 2015 WL 5577430, at
*4 (M.D.N.C. Sept. 22, 2015) (unpublished) (finding ALJ
committed reversible error when failing to adequately explain
why claimant’s VA rating was given less than substantial
weight); Allen v. Colvin, No. 2:12–CV–29–FL, 2013 WL 3983984
(E.D.N.C. Aug. 1, 2013) (unpublished) (remand required where
Commissioner did not indicate weight given to Medicaid
determination).
-9-
Here, after the ALJ’s August 14, 2014 decision, but prior
to the Appeals Council’s July 15, 2016 denial of Plaintiff’s
request for further review, Plaintiff submitted to the Appeals
Council a favorable Medicaid decision, dated January 12, 2015,
from the NCDHHS. (Tr. at 1, 290, 264, 573.) It indicated that
Plaintiff met the disability requirements (i.e., “20 CFR
416.920(d), Appendix 1, Listing 1.02”) as of May, 2014, which
was a few months before the ALJ rendered his decision in this
case on August 14, 2014. (Tr. at 572-73, 290.) The Appeal’s
Council “considered” the NCDHHS decision but found that it “does
not provide a basis for changing the Administrative Law Judge’s
decision.” (Tr. at 262, 264.)
The court agrees with Plaintiff that, at least in this
case, the Appeals Council was required to do more than this. As
an initial matter, it is important to note that the Appeals
Council has no general regulatory duty to explain its reasoning
when denying review of an ALJ decision. Meyer v. Astrue, 662
F.3d 700, 706 (4th Cir. 2011). Nevertheless, this court must
still be able to tell whether the ALJ’s decision was based upon
substantial evidence. Id. at 707. This is because “assessing the
probative value of competing evidence is quintessentially the
role of the fact finder and this Court is not authorized to
undertake the analysis in the first instance.” Wilson-Coleman v.
-10-
Colvin, No. 1:11CV726, 2013 WL 6018780, at *6 (M.D.N.C. Nov. 12,
2013) (unpublished) (citing Meyer, 662 F.3d at 706).
Here, there is unreconciled and material evidence in the
form of a favorable NCDHHS disability determination applying the
same rules and regulations applicable in this case. It is
impossible to tell whether the ALJ’s (and the Appeal’s
Council’s) decision is based on substantial evidence. This is
because the record lacks an adequate explanation of the weight
attributed to the NCDHHS decision. While there is some debate
among the courts with respect to the extent of analysis due
other agency disability determinations,5 the court finds
See, e.g., McNeal v. Berryhill, No. 4:17-CV-8-D, 2018 WL
774462, at *3 (E.D.N.C. Jan. 23, 2018) (unpublished), Report and
Recommendation adopted by 2018 WL 770184 (E.D.N.C. Feb. 7, 2018)
(unpublished); Lindsay v. Colvin, Civil Action No. 1:15-CV-013GCM-DCK, 2016 WL 3519891, at *4 (W.D.N.C. Mar. 25, 2016)
(unpublished), Report and Recommendation adopted by 2016 WL
3514117 (W.D.N.C. June 27, 2016), remanded, No. 16-1988 (4th
Cir. Oct. 18, 2016), rev’d, 1:15-CV-013-GCM-DCK, Order (W.D.N.C.
Dec. 21, 2016).
5
-11-
persuasive those cases6 concluding that a remand is appropriate
in these circumstances under the governing law discussed above.
See, e.g., Dobbin v. Colvin, No. 1:13CV558, 2016 WL
4250338, at *4 (M.D.N.C. Aug. 10, 2016) (unpublished) (“It is
impossible to tell whether the ALJ’s decision and the Appeals
Council’s review are based on substantial evidence because the
record lacks an adequate explanation of the weight attributed to
the NCDHHS decision.”); Best v. Colvin, No. 4:13-CV-231-D, 2015
WL 400560, at *6 (E.D.N.C. Jan. 28, 2015) (unpublished) (“The
Appeals Council, in denying review, indicates that ‘the
additional evidence listed on the enclosed Order of Appeals
Council’ was considered, which includes the DIPNC decision and
supporting documents, but fails to explain the consideration
given. (R. 2, 6). The failure of the Commissioner to examine and
explain the consideration given the DIPNC disability
determination requires remand.”); Williams v. Colvin, No.
4:14-CV-40-FL, 2015 WL 73818, at *6 (E.D.N.C. Jan. 6, 2015)
(unpublished) (“While the Appeals Council admitted the NCDHHS
decision into evidence, the ALJ did not have the benefit of this
material information at the time of his decision and the Appeals
Council made no findings with regard to this newly admitted
evidence in its order denying review.”); Whittington v. Colvin,
No. 5:13-CV-243-FL, 2014 WL 3818302, at *8 (E.D.N.C. July 15,
2014) (unpublished), Report and Recommendation adopted by 2014
WL 3828169 (E.D.N.C. Aug. 4, 2014) (unpublished); Allen, 2013 WL
3983984, at *2 (“In this case, the ALJ did not consider the
NCDHHS Medicaid Determination because it was presented to
defendant initially upon review of the ALJ’s determination by
the AC. R. 8. The AC gave no indication as to what weight it
accorded the NCDHHS Medicaid Determination, which listed several
impairments in addition to the chronic low back pain found by
the ALJ. R. 336–37. Thus, the court must remand to defendant to
give appropriate consideration to the NCDHHS Medicaid
Determination.” (citing Bird, 699 F.3d at 346).); Herbert v.
Colvin, No. 4:12-CV-141-D, 2013 WL 3776276, at *6 (E.D.N.C.
July 17, 2013) (unpublished) (“[T]he absence of a general
obligation by the Appeals Council to make findings does not
insulate this case [involving a Medicaid decision] from
remand.”); Blount v. Astrue, No. 4:10-CV-97-D, 2011 WL 5038367,
at *4-5 (E.D.N.C. Sept. 14, 2011) (unpublished), Report and
Recommendation adopted by 2011 WL 5042063 (E.D.N.C. Oct. 24,
2011) (unpublished).
6
-12-
The court will therefore order remand under sentence four of 42
U.S.C. § 405(g).
Defendant’s arguments to the contrary are not persuasive.
They amount to after the fact agency explanation as to why the
Appeals Council was obliged to reject or discount the NCDHHS
decision in the first instance.7 (Def.’s Mem. in Supp. of Mot.
for J. on the Pleadings (Doc. 14) at 5-10.) This begs the
question though, because assessing the probative value of
competing evidence is the role of the fact finder and this court
is not authorized to undertake the analysis in the first
instance. See Dobbin, 2016 WL 4250338, *4. Consequently, the
Any argument that the NCDHHS decision is too conclusory to
warrant meaningful review and explanation is also unpersuasive.
See, e.g., Gaskins v. Colvin, Civil Action 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 quotation marks, citations, and brackets omitted).
7
-13-
court concludes that the agency’s failure to adequately explain
itself on this issue warrants remand.8
None of this necessarily means that Plaintiff is disabled
under the Act and the undersigned expresses no opinion on that
question. Nevertheless, in light of all of the above, the
undersigned concludes that the proper course here is to remand
this matter for further administrative proceedings. Finally, the
undersigned declines consideration of the additional issues
raised by Plaintiff at this time. Hancock v. Barnhart, 206
F. Supp. 2d 757, 763-64 n.3 (W.D. Va. 2002) (on remand, the
ALJ’s prior decision has no preclusive effect, as it is vacated
and the new hearing is conducted de novo).
IV.
CONCLUSION
IT IS THEREFORE ORDERED that the Commissioner’s decision
finding no disability is REVERSED, and that the matter is
REMANDED to the Commissioner under sentence four of 42 U.S.C.
Language in Baker v. Comm’r of Soc. Sec., 520 F. App’x 228
(4th Cir. 2013), does not dictate a contrary result. A footnote
in that decision, a one-paragraph summary affirmance of a
district court’s ruling upholding a denial of supplemental
security income and disability insurance benefits, merely quotes
and relies on the principle that “‘[a] subsequent favorable
decision itself, as opposed to the evidence supporting the
subsequent decision, does not constitute new and material
evidence under § 405(g).’” Id. at n* (quotation omitted).
However, Baker is unreported and not binding precedent, and it
does not address the Fourth Circuit’s published and therefore
binding opinion in Bird. See Dobbin, 2016 WL 4250338, at *6.
8
-14-
§ 405(g). The Commissioner is directed to remand the matter to
the ALJ for further proceedings consistent with this Memorandum
Opinion and Order. To this extent, the Commissioner’s Motion for
Judgment on the Pleadings (Doc. 13) is DENIED and Plaintiff’s
Motion for Judgment (Doc. 10) is GRANTED. To the extent that
Plaintiff’s motion seeks an immediate award of benefits, it is
DENIED.
This the 19th day of March, 2018.
_______________________________________
United States District Judge
-15-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?