October 24, 2014
REBECCA L. DROUIN, Petitioner
COMMISSIONER, MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent
MARYGAY KANNEDY JUSTICE
This matter is before the court on Petitioner Rebecca L. Drouin's Rule 80C appeal of the Decision of the Maine Department of Health and Human Services ("DHHS") finding that Ms. Drouin is ineligible for MaineCare benefits based upon disability. Pursuant to 5 M.RS. § 11001 et seq., Ms. Drouin is asking that the court reverse the decision made by DHHS. DHHS has opposed Ms. Drouin's Appeal. The court held a hearing on this matter, and has reviewed the record as well as the filings from both parties. For the foregoing reasons, the court vacates the Respondent's Decision.
I. Factual and Procedural Background
The following facts are gathered from the record on appeal:
Ms. Drouin is 40-years-old and has been diagnosed with late-stage liver disease. As a result of the late stage liver disease, she suffers from chronic fatigue, body aches, mood instability and hair loss. She has also alleged problems with memory and concentration. As a result of her condition, Ms. Drouin cannot lift heavy objects, she reports that she naps at least once daily, and according to her doctor, she requires frequent breaks.
Ms. Drouin has a GED, and she has previously worked as a waitress, flagger, and process server. Her last day of work was on-October 26, 2012.
Ms. Drouin applied for MaineCare benefits based on disability on or around January 28, 2013, and her application was denied on March 15, 2013. Ms. Drouin requested reconsideration by reapplying on March 19, 2013. On April 24, 2013, Ms. Drouin was notified that her application had been denied, as DHHS determined that she could do sedentary work. On June 5, 2013, Ms. Drouin appealed the decision. On September 3, 2013, a hearing was held with a DHHS administrative hearing officer (the "Hearing Officer") where Ms. Drouin, her boyfriend Theodore McGlaughlin, and a DHHS disability claims adjudicator, Cheri Rodrigue, who had completed the 5 Step Process Form for Ms. Drouin, testified. Ms. Rodrigue is not medically trained. Both the Department and Ms. Drouin submitted written closing arguments following the hearing.
On September 26, 2013, the Hearing Officer issued a Decision finding that DHHS "was correct when it determined that Rebecca Drouin did not meet the disability criteria for Social Security-related MaineCare benefits." (Dec. at 3)(emphasis in the original). Ms. Drouin subsequently appealed the Decision on October 28, 2013.
II. Standard of Review
In its appellate capacity, the court reviews agency decisions for "abuse of discretion, error of law, or findings not supported by the evidence." Rangeley Crossroads Coal. v. Land Use Reg. Comm'n, 2008 ME 115, ¶10, 955 A.2d 223.
The burden of proof is on a petitioner to prove that "no competent evidence supports the [agency's] decision and that the record compels a contrary conclusion." Bischoff v. Maine State Ret. Sys., 661 A.2d 167, 170 (Me. 1995). "Inconsistent evidence will not render an agency decision unsupported." Id. "Judges may not substitute their judgment for that of the agency merely because the evidence could give rise to more than one result." Gulick v. Bd. of Envtl. Prot., 452 A.2d 1202, 1209 (Me. 1982).
The court must give great deference to an agency's construction of a statute it is charged with administering. Rangeley Crossroads Coal, 2008 ME 115, ¶10, 955 A.2d 223. "A court will 'not vacate an agency's decision unless it: violates the Constitution or statutes; exceeds the agency's authority; is procedurally unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by bias or an error of law; or is unsupported by the evidence in the record.'" Kroeger v. Dep 't of Environmental Prot., 2005 ME 50, ¶ 7, 870 A.2d 566 (quoted in Alexander, Maine Appellate Practice § 452 at 312 (4th ed. 2013)); see also 5 M.R.S.A. § 11007(4)(c).
Where there have been multiple levels of administrative decision-making, the most recent decision will be the one subject to Superior Court review, if the most recent decision-maker had de novo capacity and/or the authority to conduct additional fact-finding. See Alexander, Maine Appellate Practice § 455(b) at 315; see also Concerned Citizens to Save Roxbury v. Bd. Of Envtl. Prot., 2011 ME 39, ¶ 17, 15 A.3d 1263.
Pursuant to 22 M.R.S.A. § 3173, DHHS is "authorized to administer programs of aid, medical or remedial care and services for medically indigent persons." DHHS is required to operate a Medicaid program for disabled persons. See § 3174-G(1)(C) (providing that DHHS "shall provide for the delivery of federally approved Medicaid services to the following persons: A qualified elderly or disabled person when the person's family income is equal to or below 100% of the nonfarm income official poverty line.......") DHHS is also empowered "to make all necessary rules and regulations consistent with the laws of the State for the administration of these programs including, but not limited to, establishing conditions of eligibility ...."§ 3173.
DHHS operates Maine's Medicaid program through MaineCare, and the regulations promulgated by the agency regarding eligibility are contained in the MaineCare Eligibility Manual ("MCEM"). Part VI, Section I of the MCEM concerns SSI and Medicaid and provides that "[i]n general, the criteria in this section follows those used by the Social Security Administration when determining the eligibility for Supplemental Security Income (SSI) for individuals who are aged (at least 65), blind or disabled." 10-144 C.M.R. Ch. 332, Pt. 6, § 1. A person seeking Medicaid as SSI based upon a disability, who is not already receiving Social Security, SSI, Medicare, or Railroad Retirement, must qualify as disabled under the SSI standard. (Id. §4; 4.3.)
The Social Security Administration has developed a five-step sequential process to determine whether an individual is disabled for the purpose of SSI-related disability benefits. The process is detailed in 20 C.F.R. § 416.920(a). At each step if a determination is made that a person is either disabled or not disabled, then the evaluation does not continue on to the next step. § 416.920(a)(4).
Step one of the process is a determination whether or not the individual is working and engaging in substantial gainful activity. § 416.920(a)(4)(i), (b). If the evaluator makes the determination that the individual is engaging in substantial gainful activity, then the individual is not considered disabled. Id. The second and third steps involve an evaluation of the severity of the applicant's impairment. § 416.920(a)(4)(ii)-(iii), (c)-(d). The fourth step is an evaluation of an individual's "residual functional capacity" and ability to perform "past relevant work." § 416.920(a)(4)(iv), (f), (h); 414.960(b). The final step determines whether given an individual's residual functional capacity and other factors that individual can make an adjustment to other work. § 416.920(a)(4)(v), (g), (h); § 414.960(c).
The Code of Federal Regulations provides that for the government to find that an applicant is not disabled at step five of the evaluation, the government is "responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that you can do, given your residual functional capacity and vocational factors." § 404.1560(c)(2). An individual's residual functional capacity, as well as an individual's age, education, and work experience are taken into account as a part of step five. § 416.920(a)(4)(v); see also 20 C.F.R. § 416.912(f). The burden is on the Plaintiff to prove step four, and the burden shifts to the Department on step five. See Wells v. Barnhart, 267 F.Supp.2d 138, 144 (D. Mass. 2003). The Hearing Officer proceeded through all five steps of the analysis. At the fifth step, the Hearing Officer determined that there were jobs in the national economy that Ms. Drouin would be capable of performing.
This appeal is a dispute over the fifth step of the analysis. The Hearing Officer's determinations regarding the other four steps are uncontested. Proceeding through those steps did not confirm that Ms. Drouin is either disabled or not disabled. Both parties agree that Ms. Drouin suffers from severe medical impairments, that she is unemployed, and that she can no longer perform the relevant work that she did in the past. Ms. Drouin contends that the Hearing Officer came to the wrong determination at step five, when the Hearing Officer relied upon the grid to determine that "Rebecca Drouin has residual functional capacity to perform other work that is available in significant numbers in the national economy." (Dec. at 9.) Ms. Drouin also contends that the Hearing Officer failed to show adequate deference to the medical evidence from Ms. Drouin's primary care provider and impermissibly shifted the burden of proof to Ms. Drouin at step five of the analysis.
At step five of the analysis, the government is able to rely on medical-vocational guidelines known as "the grid", which are contained in the Social Security regulations, to determine whether or not an applicant is disabled, if the applicant's impairments are solely exertional. See Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001). If the applicant's impairments include nonexertional impairments that "restrict his ability to perform jobs he would otherwise be capable of performing, then the Grid is only a 'framework to guide [the] decision, ' 20 C.F.R. § 416.969a(d) (2001)." Id.
In the Hearing Officer's Decision, she notes "Ms. Drouin alleged physical impairments." (Dec. at 6.) The Hearing Officer also stated "[t]he evidence shows that she suffers from many of the symptoms of late-stage liver disease, i.e., chronic fatigue, body aches, hair loss, and mood instability." (Dec. at 7.) The Hearing Officer discussed Ms. Drouin's claim that she has difficulty concentrating, but did not analyze Ms. Drouin's other potential nonexertional limitations, such as fatigue. Based upon reviewing Ms. Drouin's records: including the admissions screening at St. Mary's on November 22, 2012, and medical visits from March and April 2013, the Hearing Officer determined that Ms. Drouin had not presented "substantial medical evidence" that Ms. Drouin cannot work because of an inability to concentrate. (Dec. at 9.) The Hearing Officer also noted that Ms. Drouin had not presented evidence of brain edema, "or any other condition associated with long term alcohol abuse that would affect her mental acuity." (Dec. at 9.)
While the Hearing Officer stated that there was insufficient medical evidence to support Ms. Drouin's claim that she could not work because of her difficulty concentrating, the Hearing Officer failed to address the opinions offered by Ms. Drouin's primary care provider, Dr. Christopher Kitchens. See 20 C.F.R. § 416.927(c)(2) ("Generally, we give more weight to opinions from your treating sources ... We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.") Nor did the Hearing Officer address Ms. Drouin's fatigue, which was addressed by Dr. Kitchens in his fatigue questionnaire. (App. Ex. 1) The fatigue questionnaire completed by Dr. Kitchens provides that Ms. Drouin suffers from moderately severe fatigue, defined as "[a]n impairment which seriously affects ability to function." (App. Ex. 1.) He indicated that Ms. Drouin's fatigue frequently interferes with her "ability to maintain attention and concentration to sufficiently complete tasks in a timely manner." (Id.) He also indicated that her fatigue is consistent with her diagnosis and clinical findings, and that she needs to change her daily activities to avoid incapacitating fatigue. (Id.) Dr. Kitchens also indicated that he anticipates that Ms. Drouin would have to miss more than two days a month from work because of her impairments or treatment. (Id.) In addition, the "Rest Questionnaire" completed by Dr. Kitchens provides that Ms. Drouin requires one ten minute rest break per hour. (App. Ex. 2).
The court is aware from her closing statement, that Ms. Rodrigue discounted the value of Dr. Kitchens' questionnaires, because she felt that the questionnaires were not supported by the available medical evidence, however, the Hearing Officer failed to address the questionnaires entirely. It was an error for the Hearing Officer to fail to address the opinions supplied by Ms. Drouin's treating physician. See Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984) (citation omitted) ("Unless good cause is shown to the contrary, the Secretary must give substantial weight to the testimony of the claimant's treating physician. If the opinion of the claimant's physician is to be disregarded, specific, legitimate reasons for this action must be set forth.").
Ms. Drouin contends that the Hearing Officer also erred when she applied the grid to determine whether or not there any jobs in the national economy that the Petitioner could perform. Ms. Drouin argues that the Department was obligated to present her with a job in the national workforce that she would be capable of performing, rather than simply applying the grid.
Ms. Drouin has argued that her symptoms like fatigue and pain, as well as her difficulty with concentration, would it make it difficult for her to perform sedentary work. At the hearing, Ms. Drouin stated that she takes between one and three naps per day. (R. Ex. B 22:12-22:16.) When asked by her attorney whether she could handle a job that entailed mostly sitting for eight hours a day, Ms. Drouin responded that she did not think she would be able to do so. (Id. at 24:19-25:6.) She did not believe she would be able to go to work on a daily basis, and she did not believe she would be capable of handling a full time job. (Id. at 25:4-25:6.) Ms. Drouin also believed that the impact her liver disease has had on her focus and concentration would have an impact on her ability to perform a job. (Id. at 25-7-25-14.)
It does not appear from the Hearing Officer's Decision that she properly took into consideration Ms. Drouin's nonexertional limitations when she applied the grid. The Hearing Officer wrote, "The Department may meet its burden of proof at Step Five by referring to sections 20 C.F.R. §§ 404.1566(d); 416.969a, 'the grid.'" (Dec. at 8.) The Hearing Officer cited to Heckler v. Campbell, 461 U.S. 458 (1983) to support her argument that the Department was not compelled to provide a list of jobs that Ms. Drouin could perform, and the Department could rely solely upon the grid. However, the Hearing Officer failed to recognize that 20 C.F.R. pt. 404, subpt. P, App. 2 § 200.00(e)(2) provides that where individuals have both nonexertional limitations and strength limitations, and a finding of disability cannot be made based upon the rules in subpart P and the applicant's strength limitations alone, the rules provide a framework for consideration of how the applicant's nonexertional limitations decrease her work capability.
"[I]f the effect of a non-exertional impairment on the range of available jobs in the national economy is significant, the Secretary must carry his burden of proving the availability of jobs by other means. Typically, the use of a vocational expert falls under the rubric of other means." Rivera-Rivera v. Barnhart, 330 F.Supp.2d 35, 38 (D.P.R. 2004) (quotations and citations omitted); see also Vazquez-Rivera v. Comm'r of Soc. Sec, 943 F.Supp.2d 300, 312 (D.P.R. 2013) (quotations omitted) (holding "when a non-exertional impairment significantly affects claimant's ability to perform the full range of jobs he is otherwise exertionally capable of performing, the Commissioner must carry his burden typically through the use of a vocational expert.") DHHS did not employ other methods in addition to the grid in determining whether there were jobs available in the national economy that Ms. Drouin was capable of performing.
The Hearing Officer failed to adequately address Ms. Drouin's nonexertional limitations when deciding how the grid was to be applied. See 20 C.F.R. § 404.1569a(d) (holding that if an applicant's impairment affects her ability to perform a job for both strength reasons and reasons that are unrelated to strength, "we will not directly apply the rules in appendix 2 unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations; otherwise the rules provide a framework to guide our decision.")
The court concludes that it was legally erroneous for the Hearing Officer to fail to address Dr. Kitchens' medical opinions. In light of Ms. Drouin's nonexertional limitations, it was also legally erroneous for the Hearing Officer to solely apply the grid at step five, rather than using the grid as a framework.
Accordingly, the court ORDERS that Respondent's Decision is VACATED. This case shall be remanded to DHH3, so that in conformance with this Order DHHS can perform anew step five of its analysis of whether the Petitioner qualifies as disabled. In this analysis, DHHS shall address the opinions provided by Petitioner's primary care physician and the impact of Petitioner's nonexertional limitations.
The clerk, is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).