Gaskins v. Commissioner of Social Security

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION: granting in part 13 Motion for Summary Judgment; denying 14 Motion for Summary Judgment; adopting 16 Report and Recommendations. Defendants Objection 17 is OVERRULED. This action is REMANDED to the Commissioner for proceedings as set forth in thisOrder and the R & R. The Clerk is directed enter a separate judgment order. Signed by District Judge Gina M. Groh on 6/19/13. (njz)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

CARRIE L. GASKINS,
Plaintiff,
v.

CIVIL ACTION NO. 3:12-CV-81
(JUDGE GROH)

CAROLYN W. COLVIN1,
Commissioner of Social Security,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION
I.

Procedural History
The Plaintiff, Carrie L. Gaskins, filed an application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act on July 25, 2008. In the application, the
Plaintiff alleged disability since April 1, 1999, which she later amended to June 1, 2007. [R.
12, 151].2 The Plaintiff alleged in her application that she was disabled due to fibromyalgia,
heart problems, degenerative disk disease, arthritis, and bursitis. [R. 151].
The Social Security Administration denied the Plaintiff’s application initially on
October 10, 2008, and again upon reconsideration on February 17, 2009. The Plaintiff

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court hereby
substitutes Carolyn W. Colvin for Michael J. Astrue, the former Commissioner of Social
Security, as the defendant in this suit. See also 42 U.S.C. §405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”).
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All citations to the Record refer to the Administrative Record [Doc. 7].

requested a hearing, and a hearing was held on June 7, 2010, before Administrative Law
Judge (“ALJ”) Karl Alexander. The Plaintiff, represented by counsel, testified on her own
behalf, as did Vocational Expert (“VE”) Larry Kontosh. On July 14, 2010, the ALJ issued
a decision, finding that the Plaintiff suffers from the following severe impairments:
fibromyalgia; mild degenerative disc disease/degenerative arthritis of the cervical and
thoracic spine; degenerative disc disease/degenerative arthritis of the lumbar spine with
EMG and nerve conduction studies suggestive of radiculopathy; asthma; major depressive
disorder, recurrent, severe; generalized anxiety disorder; somatoform disorder; and
personality disorder with histrionic traits. The decision found that the Plaintiff is not under
a disability as defined in the Social Security Act. The ALJ found that the Plaintiff is unable
to perform any past relevant work, but retains the residual functional capacity (“RFC”) to
perform sedentary work: work which involves lifting no more than ten pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R.
§404.1567(a). In addition, the ALJ found that the Plaintiff has some exertional and nonexertional limitations. The Appeals Council denied the Plaintiff’s request for review on June
22, 2012, thus making the ALJ’s decision the final decision of the Commissioner.
Thereafter the Plaintiff filed the present civil action pursuant to 42 U.S.C. §405(g),
seeking judicial review of an adverse decision by the Defendant Commissioner of Social
Security. The case was referred to United States Magistrate Judge John S. Kaull for
submission of proposed findings of fact and recommendation for disposition pursuant to 28
U.S.C. §636(b)(1)(B). Both the Plaintiff and the Defendant filed motions for summary
judgment [Docs. 13 and 14]. On May 13, 2013, the magistrate judge entered a report and
recommendation (“R & R”), recommending that the Defendant’s motion for summary
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judgment be denied, and the Plaintiff’s motion for summary judgment be granted in part by
reversing the Secretary’s decision under sentence four of 42 U.S.C. §§405(g) and
1383(c)(3), with a remand of the case to the Secretary for further proceedings [Doc. 16].
The Defendant filed a timely objection to the report [Doc. 17].
II.

Standard of Review
Pursuant to 28 U.S.C. §636(b)(1)(C), this Court must conduct a de novo review of

any portion of the magistrate judge’s recommendation to which objection is timely made.
As to those portions of a recommendation to which no objection is made, a magistrate
judge’s findings and recommendation will be upheld unless they are “clearly erroneous.”
See Webb v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Because the Defendant filed
an objection, this Court will undertake a de novo review as to those portions of the report
and recommendation to which objection was made.
An ALJ’s findings will be upheld if supported by substantial evidence. See Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). Substantial evidence is that
which a “‘reasonable mind might accept as adequate to support a conclusion.’” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). Further, the “possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence.” Sec’y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir.
1996) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).

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III.

Discussion
In his R & R, the magistrate judge recommended that this case be remanded “for

the sole reason that the ALJ failed to consider in his decision the [P]laintiff’s having been
awarded Medicaid benefits by the State of West Virginia for [eight] months.”

The

Defendant, in objecting, argues that the Plaintiff was no longer eligible to receive Medicaid
benefits at the time of the hearing, and that the particular Medicaid documents in question
provided no basis on which to find the Plaintiff disabled, rendering any alleged error on the
ALJ’s part harmless. The Defendant accordingly prays that the Court decline to adopt the
magistrate judge’s R & R and instead affirm the decision of the ALJ.
An ALJ is required to consider decisions by other governmental agencies about
whether a claimant is disabled, including Medicaid decisions, although such decisions are
not binding on the ALJ. See Soc. Sec. Ruling 06-03p, 2006 WL 2329939, at *6-7 (Aug. 9,
2006). Failure to discuss a Medicaid decision can require remand. See, e.g., DeLoatche
v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983); Davis v. Astrue, 2012 WL 555304
(E.D.N.C. Feb. 17, 2012), adopting recommendation of magistrate judge, 2012 WL 555782,
at *5 (E.D.N.C. Jan. 5, 2012).
The specific records in question pertain to Medicaid benefits which the Plaintiff
received between October 2008 and May 2009.

Each of the relevant documents,

addressed to the Plaintiff from the West Virginia Department of Health and Human
Services, is entitled “Notice of Decision,” and provides that the Plaintiff’s application for “SSI
Related Medicaid” has been approved for a specific one-month period. [R. 241-244, 251264]. Each document, under the section entitled “Reason,” simply states that “Your

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assistance group met all eligibility requirements.”
The Defendant alleges that any error committed by the ALJ in failing to specifically
reference the Medicaid decisions was harmless, because the decisions themselves were
conclusory and “[t]here was nothing for the ALJ to say . . . besides to note that he
considered the forms in the context of the longitudinal record . . . [and the ALJ] expressly
provided in his opinion that he considered the whole record.”
However, where the Social Security Administration’s own internal policy
interpretation rulings affirmatively required the ALJ to consider evidence of a disability
decision by another governmental agency, the ALJ was required to say “more than
nothing.” Watson v. Astrue, 2010 WL 2772498, at *1 (E.D.N.C. July 9, 2010). “The
regulations governing Social Security cases . . . do not limit the required review of other
agency’s disability determinations to cases where the decision is ‘substantive’ . . . [r]ather,
findings by other governmental agencies ‘cannot be ignored and must be considered,’ and
the ALJ must ‘explain the consideration given to these decisions.’” Alexander v. Astrue,
2010 WL 4668312, at *3 (E.D.N.C. Nov. 5, 2010) (citing S.S.R. 06-03p, supra). This is so
because to the extent that “Medicaid decisions employ the same standards as the Social
Security Administration uses in disability determinations,” Id. at *4, 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 Secuity Administration. Id.
The Defendant cites a variety of cases for the proposition that the ALJ is not
required to use “magic words” or to cite each and every piece of evidence on which he
relies. See, e.g., Vest v. Astrue, 2012 WL 4503180, at *2 (W.D. Va. Sept. 28, 2012)

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(finding that “[t]he fact that the ALJ uses the word ‘meet’ instead of the words ‘meet or
equal’ when he discusses the impact of [claimant’s] obesity at step three of the analysis is
of no moment; the ALJ’s opinion makes clear that he considered [the claimant’s]
combination of impairments and determined that they do not meet or medically equal a
listed impairment.”) (emphasis in original); Broughman v. Astrue, 2008 WL 5381573, at
*3 (W.D. Va. Dec. 19, 2008) (finding that “[n]otwithstanding the ALJ’s failure to specifically
reference the 1999 psychological evaluation, his decision is supported by substantial
evidence . . . [t]he ALJ is not obligated to discuss every single piece of evidence in the
record, and his failure to cite a specific piece of evidence is not an indication that the
evidence was not considered.”) (citations omitted). However, the instant situation is
distinguishable because the Social Security Administration’s own rules required the ALJ to
make specific findings with regard to the subject Medicaid decisions.
Bean v. Astrue, 2011 WL 976605, at *2 (E.D. Va. March 17, 2011), is inapposite
because the court in that case found that “[a]lthough the VA determination was not binding
on the ALJ, the record reflects that the ALJ did not completely exclude it from
consideration.” There is no such indication in this case.
Overstreet v. Astrue, 2012 WL 4355505, at *6 (E.D.N.C. Sept. 21, 2012), is
likewise inapposite because the court in that case found that “the ALJ committed no error
in not considering the 2009 Medicaid decision because it was not part of the record before
him.” There is no such allegation in the instant case.
All of the foregoing compels this Court to conclude, in the same vein as the
magistrate judge, that the ALJ’s failure to consider the award of Medicaid benefits to the

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Plaintiff cannot be said to constitute harmless error, because the Court cannot determine
whether the ALJ considered and discounted the same evidence on which the West Virginia
Medicaid decision was based. Accordingly, the Defendant’s objection is OVERRULED,
and this case is remanded under 42 U.S.C. §405(g). Specifically, the Commissioner is to
take into consideration the Plaintiff’s award of Medicaid by the West Virginia Department
of Health and Human Services for the months of October 2008 through May 2009. In doing
so, the Court expresses no opinion on how the Defendant should view the evidence or what
findings Defendant should make. These issues are for the Defendant to consider and
resolve.
IV.

Conclusion
In sum, the Court ADOPTS the conclusions in the R & R [Doc. 16]. Defendant’s

Objection [Doc. 17] is OVERRULED, Defendant’s Motion for Summary Judgment [Doc.
14] is DENIED, Plaintiff’s Motion for Summary Judgment [Doc. 13] is GRANTED IN PART,
and this action is REMANDED to the Commissioner for proceedings as set forth in this
Order and the R & R.
It is so ORDERED.
The Clerk is directed enter a separate judgment order and transmit copies of this
Order to all counsel of record and/or pro se parties.
DATED: June 19, 2013.

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