Holmes v. Constantino et al

Filing 13

ORDER granting 10 Motion for Judgment on the Pleadings. So Ordered by Senior Judge Ronald R. Lagueux on 2/19/14. (Farrell Pletcher, Paula)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
HERBERT HOLMES,
Plaintiff,
v.

C.A. No. 12-931

STEVEN CONSTANTINO, in his
official capacity as Secretary of
R.I. Executive Office of Health &
Human Services and SANDRA POWELL,
in her official capacity a Director
of the R.I. Department of Human
Services,
Defendants.
OPINION AND ORDER
This matter is before the Court on the Motion of Defendants
to dismiss Plaintiff’s complaint through entry of judgment on the
pleadings, pursuant to Fed. R. Civ. P. Rule 12(c).

Plaintiff

Herbert Holmes seeks this Court’s review of Defendants’
interpretation and application of federal regulation 20 C.F.R. §
416.930; the misinterpretation of which, Plaintiff alleges,
resulted in Defendants’ denial of his application for medical
assistance benefits.

Defendants argue that this Court must

refrain from interfering in the State’s administration of medical
assistance benefits, and must decline to hear this matter based

on the doctrine of abstention set forth in Burford v. Sun Oil
Co., 319 U.S. 315 (1943).

Although the Court rejects Defendants’

argument that abstention is appropriate in this matter, the Court
grants Defendants’ motion to dismiss because, as explained below,
Plaintiff lacks the requisite standing to pursue his claims here.
Background
Plaintiff was born in 1965 and spent fifteen years as a
furniture mover.

He is currently unemployed and indigent.

In

addition, Plaintiff is plagued by various physical and emotional
problems, including, inter alia: arthritis, diabetes,
hypertension, neuropathy, depression and anxiety.
In January 2010, Plaintiff applied to the State of Rhode
Island for medical assistance benefits.

Rhode Island Medical

Assistance (“Medical Assistance”) is a state program administered
in conjunction with the federal Medicaid program.1 See R.I. Gen.

1

Medicaid is established by Title XIX of the Social
Security Act, 42 U.S.C. §§ 1396-1396v.
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Laws §§ 40-8-1 et seq.

Its purpose is to provide assistance for

medical care and treatment to those in need.

The state program

is funded through federal Medicaid and, according to federal law,
must conform with the pertinent federal law and regulations.
U.S.C. § 1396a; R.I. Gen. Laws 40-8-13.

42

Specifically,

eligibility for state Medical Assistance must be assessed
according to the federal definition for disability.
1396a(v); 42 U.S.C. § 1382c(a)(3)(A).

42 U.S.C. §

The required five-part

analysis is set forth at 20 C.F.R. § 416.920.

Medical evidence

must also be reviewed and evaluated in a manner consistent with
federal regulations.

20 C.F.R. §§ 416.901-416.988.

Plaintiff’s application for Medical Assistance was denied in
August 2010, when Defendants’ hearing officer determined that
Plaintiff was not disabled.

Plaintiff appealed the ruling to the

Rhode Island Superior Court, which identified shortcomings in the
hearing officer’s decision, and vacated and remanded the matter

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to Defendants’ agency.

Following additional proceedings

consistent with the directives of the Superior Court, Plaintiff
was again determined to be not disabled, in November 2012.
Plaintiff then filed his federal complaint.
The complaint

In his complaint, Plaintiff claims that Defendants have a
long-standing policy or practice of misapplying one of the
federal regulations involved in the evaluation of disability;
that is, the section entitled “Need to follow prescribed
treatment.” 20 C.F.R. § 416.930.

The adverse application of this

section, Plaintiff asserts, resulted in the wrongful denial of
his claim for benefits.
In his first claim for relief, Plaintiff states that
Defendants have violated federal law and thereby denied him the
rights, privileges and immunities provided by the laws of the
United States.

In his second claim for relief, Plaintiff asserts

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that Defendants’ hearing procedures and disability determination
violate the Due Process Clause of the U.S. Constitution, as well
as federal law, 42 U.S.C. § 1396a(a)(3).

Plaintiff seeks a

declaratory judgment that Defendants’ practice violates 42 U.S.C.
§§ 1382c(a) and 1396a; he also seeks a permanent injunction
ordering Defendants to comply with regulations going forward.
The Need to follow prescribed treatment

The section in question provides:
(a) What treatment you must follow. In order
to get benefits, you must follow treatment
prescribed by your physician if this
treatment can restore your ability to work,
or, if you are a child, if the treatment can
reduce your functional limitations so that
they are no longer marked and severe.
(b) When you do not follow prescribed
treatment. If you do not follow the
prescribed treatment without good reason, we
will not find you disabled or blind or, if
you are already receiving benefits, we will
stop paying you benefits.
20 C.F.R. § 416.930.

The section continues with a subsection (c)

which provides examples of acceptable reasons for failing to
follow prescribed treatment (such as a religious objection or

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that the treatment is extremely risky).
According to Plaintiff’s complaint, Defendants misapply and
overuse this section in order to justify the denial of benefits
to otherwise eligible Rhode Islanders.

Plaintiff claims:

Instead of applying § 416.930 to the
relatively rare situation where the medical
evidence contains evidence of refusal or
failure, without good cause, to comply with
prescribed treatment expected to restore
work, Defendants apply the regulation as
imposing upon each applicant the burden of
proving that s/he has strictly complied with
all treatment. As a result, application of
this regulation is the rule, not the
exception, in Medicaid disability hearing
decisions.
Complaint ¶ 22.
The hearing officer’s decision

In a 23-page decision, Defendants’ hearing officer reviews
and summarizes Plaintiff’s medical records.

In the section

entitled “Discussion of the Medical Evidence Record,” the hearing
officer devotes a paragraph to the disputed regulation.
In order to get benefits, an individual
must follow treatment prescribed by his
physician if this treatment can restore his
ability to work. If the individual does not
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follow the prescribed treatment without good
reason, he will not be found disabled. The
individual’s physical, mental, educational,
and linguistic limitations will be considered
to determine if he has an acceptable reason
for failure to follow prescribed treatment in
accordance with 20 CFR 416.930. Although the
presence of an acceptable reason must be
evaluated based on the specific facts
developed in each case, examples of
acceptable reasons for failing to follow
prescribed treatment can be found in 20 CFR
416.930(c). In this matter, the appellant’s
PCP [primary care physician] had consistently
documented non compliance relative to routine
laboratory testing, dietary requirements,
smoking cessation, and evaluation of
specialists. As a result, the physician’s
records often provided more information about
what was unproven rather than facts that
would lead to accurate determinations
regarding diagnoses and the best treatment
options. The appellant did not make any
excuses or claim good cause for his missed
appointments and tests. Not taking
prescribed medication and/or infrequently
seeking prescribed medical evaluation
undermines complaints of disabling symptoms.
Reconsidered Decision, November 26, 2012, at 13-14.
In the Conclusion section, the hearing officer summarized
the evaluation process and the findings.

In connection with

Plaintiff’s various ailments, the hearing officer made the
following observations:
Diabetes – although Plaintiff’s diabetes is poorly controlled
through diet, there are no secondary symptoms or resulting
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complications.
Hypertension – well controlled through medication.
Coronary artery disease – Plaintiff had successful stent surgery
with no recurring problems.

While his condition is stable and

asymptomatic, his physician has recommended reasonable caution
with physical exertion.
Osteoarthritis in knees – Plaintiff’s knees are painful, and
untreated.2

However, there is no evidence of loss of strength or

nerve or muscle damage.

He is able to get around without

assistance and perform daily activities independently.
Plaintiff’s doctor recommended a limit of two hours of walking
and standing during a work-day.
Depression – Plaintiff has no history of mental health
impairments and no history of psychiatric treatment.

His mental

state is described as a “depressed mood.”
2

Plaintiff stated that he cannot take painkillers because
of his previous opiate addiction; he has been told that he is too
young for knee replacement surgery and that cortisone injections
are counter-indicated because of his history of heart problems.
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Substance abuse – Plaintiff had become addicted to painkillers
prescribed for his knee pain but has achieved sobriety through a
medical program.
Thyroid – Plaintiff has an enlarged thyroid with a nodule but
there are no symptoms or problems associated with this condition.
Plaintiff has a bullet lodged behind ear; however, there is no
evidence that this effects his hearing or other functioning.
Taking into account Plaintiff’s physical and mental
limitations, the hearing officer concluded that, while Plaintiff
could not go back to work as a furniture mover, he was not
disabled and he could successfully perform a sedentary job.
In summary, the appellant was age 45 at
the time of application. He had completed a
high school education, and had a positive
past relevant work history as a furniture
mover. Evidence established the existence of
medically determinable impairments including
diabetes which, although not optimally
controlled, had not been proven to have
resulted in specified residual effects at the
time of hearing. Hypertension had been
successfully medication managed, and related
coronary artery disease had been asymptomatic
for more than 2 years after stent placement.
Thyroid enlargement and nodule formation was
not associated with any proven dysfunction.
Knee pain did reduce activity, as the
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condition was untreated, and the potential
for improvement of adverse symptoms had not
been well defined or implemented. Evidence
did not rule out his ability to perform
sedentary level activity which would allow
him to use upper extremities unaffected by
his conditions while working in a seated
position throughout most of a workday, as the
appellant and his legal representative
believed that he could do. Situational
depression had not been treated consistently,
and resulted in reduced motivation and
interest. Even when considering the
reduction of activity secondary to depressive
symptoms, there was no evidence that would
rule out that his mental capability was
sufficient to perform at least simple tasks,
or to preclude the possibility that he could
learn new skills. Substance dependence
remained in remission, and did not directly
impact functioning at the time of the
decision.
Reconsidered Decision at 22.
Standard of review
Defendants have moved for judgment on the pleadings,
pursuant to Fed. R. Civ. P. 12(c).

As with other motions brought

under Rule 12, the Court is required to review the pleadings and
the facts therein in the light most favorable to the party
opposing the motion – in this case, Plaintiff.
Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).

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Perez-Acevedo v.

In addition, the Court “may supplement the facts contained
in the pleadings by considering documents fairly incorporated
therein and facts susceptible to judicial notice.”
Cousins, 509 F.3d 36, 44 (1st Cir. 2007).

Curran v.

In this case, the

Court has reviewed and relied upon the Reconsidered Decision of
the Department of Human Services hearing officer, dated November
26, 2012.
Analysis

Burford abstention

Defendants urge the Court to refrain from proceeding with
this case because the State’s Medical Assistance program is a
complex regulatory system that would be better reviewed by the
Rhode Island Superior Court, according to established state
administrative procedures.

Plaintiff argues that federal court

is the proper venue because he is challenging the State’s
interpretation of federal law.

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The Supreme Court directs the federal courts to exercise the
jurisdiction conferred upon them.

New Orleans Public Serv., Inc.

(“NOPSI”) v. Council of City of New Orleans, 491 U.S. 350, 358
(1989).

Quoting NOPSI, the First Circuit wrote, “This all but

unyielding duty to exercise jurisdiction rests on ‘the undisputed
constitutional principle that Congress, and not the Judiciary,
defines the scope of federal jurisdiction within the
constitutionally permissible bounds.’”

Chico Service Station,

Inc. v. Sol Puerto Rico, Ltd., 633 F.3d 20, 29 (1st Cir. 2011).
There are, however, exceptional circumstances where the
courts may refuse to exercise jurisdiction.

One set of

circumstances occurs when the matter before the court falls
within the reach of the Burford abstention doctrine.

In Burford,

Sun Oil Company attacked the validity of the Texas Railroad
Commission’s grant of an oil drilling permit, pursuant to the
state’s oil and gas conservation regulations.

The Supreme Court

held that the federal court should not perform a judicial review
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of the administration of a complex state regulatory scheme that
would duplicate the review undertaken in the Texas state court.
319 U.S. at 333-34.
The doctrine of Burford abstention was refined by the
Supreme Court in the NOPSI case, where the Court held that the
district court had erred in abstaining, because the litigation
“does not involve a state-law claim, nor even an assertion that
the federal claims are in any way entangled in a skein of statelaw that must be untangled before the federal case can proceed.”
NOPSI, 491 U.S. at 361.

As Judge Selya explained in Fragoso v.

Lopez, 991 F.2d 878, 882 (1st Cir. 1993), “Post-NOPSI Burford
applies only in narrowly circumscribed situations where deference
to a state’s administrative processes for the determination of
complex, policy-laden, state-law issues would serve a significant
local interest and would render federal-court review
inappropriate.”

Since Fragoso, the First Circuit continues to

urge limited application of Burford abstention.
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See Vaqueria

Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 473 (1st Cir.
2009)(“We believe that an expansive reading of NOPSI – one that
would require federal courts to abstain from hearing any case
involving important state regulatory policies – is not consistent
with Supreme Court precedent or with our own.”).
In accordance with the NOPSI analysis, the First Circuit
considers three factors in determining whether or not abstention
is proper:
(1) the availability of timely and adequate state-court
review, (2) the potential that federal court
jurisdiction over the suit will interfere with state
administrative policy-making, and (3) whether conflict
with state proceedings can be avoided by careful
management of the federal case.
Chico Service Station, 633 F.3d at 32.
In the present case, Plaintiff asks the Court to review the
application of a federal regulation, 20 C.F.R. § 416.930. The
regulation is interpreted by state employees, administering a
state program; however, it is a state program designed and funded
by the federal government.

Moreover, the state program is
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required by law to be administered in compliance with the federal
statute and regulations.

42 U.S.C. § 1396a(v).3

Plaintiff does

not seek appellate review of his disability determination from
this Court.

Instead, he seeks federal court review of the

interpretation of a federal law.

These circumstances are

significantly different from the facts of Burford, where the
federal court was being asked to review the allocation of a state
drilling permit made in accordance with a complex state
regulatory scheme.

And, while it would be possible for Plaintiff

to pursue his claim in state court, the Court does not believe
that its exercise of jurisdiction over this matter would
“interfere with state administrative policy-making,” or conflict
with, or duplicate, ongoing state proceedings.
at 32.

Chico, 633 F.3d

Consequently, the Court holds that Burford abstention is

not proper in the present case.
3

42 U.S.C. § 1396a(v) provides in pertinent part that
disability determinations made by a State plan “must apply the
definitions of disability and blindness found in section 1382c(a)
of this title.”
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This Court’s decision is supported by a review of cases in
our circuit which have addressed Medicaid and the state programs
that administer it.

In Rosie D. v. Swift, 310 F.3d 230 (1st Cir.

2002), a group of Medicaid-eligible children were authorized to
go forward with their federal suit against the State of
Massachusetts over their demand that the State provide them with
certain mental health services they insisted were required under
federal Medicaid law.

See also Rosie D. et al. v. Romney, 410 F.

Supp. 2d 18, 52 (D. Mass. 2006) (“Plaintiffs have properly
invoked 42 U.S.C. § 1983 to enforce rights conferred on them by
the Medicaid Act.”).

Similarly, in King by King v. Sullivan, 776

F.Supp. 645 (D.R.I. 1991), this writer reviewed a motion for
summary judgment brought by Medicaid recipients challenging Rhode
Island’s failure to provide adequate facilities for the mentally
retarded.

That case required this Court’s in depth review of the

services provided by the State – unlike the case before the Court
herein, which only requires the interpretation of a federal
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regulation.

See also

American Soc. of Consultant Pharmacists v.

Concannon, 214 F. Supp. 2d 23 (D. Me. 2002).

Notably, these

cases do not address Burford abstention or any other abstention
doctrine.
The Court concludes this section with another eloquent
formulation from Judge Selya:
NOPSI makes clear that Burford abstention
requires more than a desire to avoid every
inconvenience to, or disruption of, a state’s
regulatory systems. Otherwise, abstention
would be proper in any instance where a
matter was within an administrative body’s
jurisdiction. That cannot be the rule. It
follows, then, that the mere existence of
state procedures, or even the existence of a
complex state apparatus designed to handle a
specific class of problems, does not
necessarily justify abstention.
Fragoso, 991 F.2d at 885.
Standing

While the complexity of Rhode Island’s Medical Assistance
program does not impose a limit to the Court’s jurisdiction, the
doctrine of standing creates an insurmountable obstacle.
Court may not offer an advisory opinion.
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This

Osediacz v. City of

Cranston, 414 F.3d 136, 139 (1st Cir. 2005).

It is not enough

for Plaintiff to assert that Defendants are misinterpreting 20
C.F.R. § 416.930, Plaintiff must also be able to demonstrate that
their misinterpretation has caused him an injury.
Defenders of Wildlife, 504 U.S. 555, 563 (1992).

Lujan v.
Based upon a

reading of the hearing officer’s Reconsidered Decision, Plaintiff
cannot fulfill the requirement of an “injury-in-fact.”
The three-part test for standing requires a showing that
plaintiff has suffered an injury in fact, caused by the
complained-of conduct, and that the relief sought will redress
the injury.

Osediacz, 515 F.3d at 139.

In the present case,

Plaintiff has suffered an injury: the denial of his claim for
Medical Assistance benefits.

However, this denial did not result

from the application, or misapplication, of 20 C.F.R. § 416.930.
It resulted from the hearing officer’s conclusion that Plaintiff
is not disabled.

And were the Court to find that Defendants have

misapplied the regulation, Plaintiff would receive no redress
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because he would still be “not disabled.”
In the Reconsidered Decision, the hearing officer found
that, while Plaintiff was indeed suffering from various ailments,
none of those ailments was serious enough to prevent him from
working in a sedentary job.

The hearing officer concluded that

Plaintiff had no complications or symptoms resulting from his
diabetes, no problems resulting from hypertension, no
complications from his history of heart disease and surgery, no
symptoms resulting from his thyroid nodule, and no evidence of
any psychiatric impairments.

The hearing officer recognized that

Plaintiff had pain resulting from osteoarthritis in both knees;
nonetheless, the hearing officer found that he was able to get
around and perform daily activities independently.

Plaintiff’s

physician recommended that he limit standing and walking to two
hours in a given workday.

Given these findings, the hearing

officer determined that Plaintiff was not disabled.
The hearing officer did address the regulation in question,
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and the paragraph devoted to Plaintiff’s neglect of his own
health may have given rise to some confusion.

However, the

scenario addressed by 20 C.F.R. § 416.930 does not pertain to
Plaintiff.

This is crucial: The hearing officer never states

that Plaintiff is disabled, but would be able to cure or overcome
that disability through treatment that has been prescribed but
not followed, as the regulation sets forth.

Instead, the hearing

officer expresses something more like frustration with
Plaintiff’s failure to take care of himself, through proper diet
and quitting smoking, etc., and expresses that reaction under the
general topic heading of the federal regulation.

In the words of

the hearing officer, Plaintiff’s failure to follow some
prescribed treatment “undermines complaints of disabling
symptoms.”
dispute.

Reconsidered Decision at 14.

This is hard to

Most in our community would agree that a person should

try to help himself before seeking help from others.
The hearing officer also notes that Plaintiff’s failure to
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follow through with doctor’s visits and evaluations by
specialists recommended by his primary care physician had the
secondary result of producing a slim medical record.

The hearing

officer stated that “the physician’s records often provided more
information about what was unproven rather than facts that would
lead to accurate determinations regarding diagnoses and the best
treatment options.”

Reconsidered Decision at 14.

At no point does the hearing officer apply the disputed
regulation to the evaluation of Plaintiff’s condition.
Consequently, the Court holds that Plaintiff has not suffered an
injury in fact caused by Defendants’ alleged misapplication of
the federal regulation in question.
Conclusion
For these reasons, the Court grants Defendants’ motion to
dismiss Plaintiff’s complaint based upon the pleadings.
ordered.

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It is so

/s/Ronald R. Lagueux
Senior United States District Judge

February 19, 2014

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