G. R. SMITH, Magistrate Judge.
This Social Security appeal presents a relatively standard claim — that the ALJ erred in denying benefits — but also a relatively rare, procedural due process claim.
Sondra Lee Lane applied for Disability Insurance Benefits (DIB) and Medicare Part A benefits. Doc. 19-5 at 2.
The SSA reviewed hearing evidence (and a follow-up letter from Lane's doctor) showing that she was aged 61 at the time of the ALJ hearing. There she testified that she is in pain 24/7, her appetite is "iffy," and she is on an antidepressant. Doc. 19-2 at 57-58. Armed with a medical assistant's degree, she endures no difficulty reading, writing, or doing simple math unless she takes her medications (Flexeril and morphine, about 3-4 times a week), "then I probably couldn't spell dog for a couple of hours." Id. at 59.
Plaintiff further testified that, other than when her then-husband was stationed overseas in 1978, she had been continuously employed since her high school days in jobs such as a convenience store clerk, then a manager, doc. 19-2 at 67-68, and later a medical office administrative assistant until ultimately (in 2004) she worked as an administrative secretary and bookkeeper for a Bulloch, County, Georgia public school. "I was primarily at a desk probably half of the time, and then running around the other half." Doc. 19-2 at 60. She was responsible for "ordering any supplies and everything that we would need, I did all that." Id. She occasionally would have to lift "a boxful of files that weighed maybe 10 or 20 pounds." Id. at 61.
The ALJ specifically questioned Lane about her jobs' physical demands. They required relatively little. From 1998-2004, for example, she worked as a "front office coordinator" and supply master for a medical practice group. Id. at 61-62. She "did all the weekly, monthly and year ending financial reports," but lifted nothing over 20 pounds. Id. at 62.
Lane's employment career effectively ended in September 2009. She had endured a "bowel resection" and "my back was getting so bad
Lane also claimed that she is allergic to anti-inflammatory medication, so she cannot address her back pain and muscle spasms. Doc. 19-2 at 71. Nor does alternative medicine ("acupuncture, stuff like that") work. Id. On morphine since 2009, her pain pervades her back and hip regions. "Dr. Purvis thinks that, you know, sometimes I'm getting flare up of fibromyalgia and again anti-inflammatories are recommended for that and I can't take that. I can't take a lot of different pain medications, anything with codeine or anything like that, I'm allergic. I'm a really hard patient. He says I'm difficult to treat because of my allergies." Id. Physical therapy is ineffective beyond the short term. Id. at 71-72. Nor are trigger-point injections or chiropractic measures. Id. at 72. Her pain meds only last for "about two hours and then the pain starts coming back, the stiffness returns." Id. at 73.
Lane exhibited pain-based discomfort at the ALJ hearing. Doc. 19-2 at 73-74 (in "the mid back, the mid back are from like my bra strap up, up into my neck and then if I sit too long in one position, I get pains going down this right hip and down my leg."); see also id. ("It's a throbbing, like somebody's twisting and pulling and — it's like a toothache in the middle of your back."). Flexeril helps "definitely" and "muscle relaxers will make these muscles relax and not hurt so bad but they also put me to sleep." Id. at 74. She takes it at night but "[t]here are some days [about once or twice a week] that I have to take it a couple times a day." Id. She has three to four "bad days" with back pain. "There are days I don't get dressed," and thus stays in bed. Id. at 76.
Plaintiff also suffers from Chronic Obstructive Pulmonary Disease (COPD).
These ailments limit Lane's physical activities. She and her husband attend church but it is physically hard for her sit through a church service. Doc. 19-2 at 78. They rarely go out to eat, she does only "very light" housework, and performs no yard work on their 180-acre spread. Id. at 78-79. Lane does grocery shops only once or twice a month and when she does she must lean on a grocery cart. "It may take me 20 minutes to walk from one end of the store to the other." Id. at 82.
Her indoor activity also is restricted. Plaintiff is able to load her dishwasher but "it may take me two or three trips to the kitchen to get it done." Id. at 80. She prepares "one pot meals, crockpot meals, things that I don't have to stand and watch over." Id. at 83. She can stand for about "[t]en, fifteen minutes at the most, and that's on a good day." Id. Lane watches TV but "most of the time I fall asleep." Doc. 19-2 at 81. Her inability to concentrate inhibits reading, and she has difficulty remembering doctor's appointments and paying her bills. Id. at 81-82.
Finally, plaintiff also suffers from depression. Doc. 19-2 at 84. Her doctor first prescribed Wellbutrin, then (when that didn't work) Celexa. Id. Celexa helps "take the edge off" of her sense of despair over her medical condition and the pain and incapacitation that it wreaks. Id. at 85.
The forgoing review of the entire evidentiary hearing transcript reveals no mention of hospitalization, nor any quest for post-hospitalization home or hospice care. In fact, it reflects Lane's pursuit of a (DIB) claim, not (as is further demonstrated infra) a "Medicare Part A" claim.
Lane's due process claim leads the Court back to her application: "I apply for a period of disability and/or all benefits for which I am eligible under Title II [i.e., DIB] and Part A of Title XVIII of the Social Security Act, as presently amended."
In any event, Lane's October 19, 2010 application required her to show, for DIB, an "insured status" (i.e., that she had worked and thus contributed to the SSA system)
Plaintiff also applied for disability insurance benefits (DIB) under title II of the Social Security Act (Tr. 167). But, contrary to Plaintiff's assertions, Plaintiff's insured status expired prior to the alleged onset of her disability (Tr. 182). Accordingly, Plaintiff was not eligible for DIB.
Doc. 24 at 1, 2 & n. 1. Lane then expresses surprise at that:
Doc. 28 at 2-3 (emphasis and footnote added).
Lane thus argues that her due process right to reasonable notice was violated. That is, the SSA never gave her "notice that she was ineligible for disability insurance benefits based on her date last insured prior to the filing of the Commissioner's memorandum in this Court[.]" Doc. 28 at 3. The SSA, she further contends, should have early on provided her notice that she was ineligible for DIB benefits based on her date last insured. That way, she could have amended her alleged onset date to June 30, 2009 or earlier, or provided evidence and argument as to whether or not she had sufficient quarters of coverage to qualify for those DIB cash benefits after June 30, 2009. Id. at 3-4. Indeed, she further points out (in interrogatory form) that the ALJ's hearing notice spoke of disability insurance benefits only, and the ALJ never informed her "that her disability status on or before June 30, 2009 was the threshold issue in her claim for disability insurance benefits." Id. at 4. Nor did the ALJ's opinion address her DIB claim. Id.
Remand is demanded, she contends, because (a) the SSA never issued a final administrative decision on her disability (DIB) claim, but instead on a Medicare Part A claim (though she doesn't explicitly say this); and (b) the SSA's defective hearing notices denied her procedural due process — she should now be permitted to amend her alleged onset date and present insured-status evidence. Doc. 28 at 5. Finally, she wants the SSA's decision vacated to prevent the res judicata doctrine from being applied against her on remand. Id.
Lane's due process claim is best understood by first reviewing the basis of the ALJ's ruling, as affirmed by the Appeals Council. Recall that Lane herself applied for disability insurance benefits (DIB) and Medicare. Doc. 19-5 at 2; Kaohi, 2015 WL 6472231 at *3 ("Part A of Title XVIII" is a claim for Medicare). Lane represented that she "became unable to work . . . on September 30, 2009." Id. The ALJ expressly denied her application for Medicare Part A benefits on the merits, and (tacitly) DIB benefits based on lack of insured status. Doc. 19-2 at 3 (noting that she met the insured status "regarding Medicare coverage through December 31, 2014" but omitting mention of DIB coverage).
Long-settled law placed Lane on notice, before she even applied for benefits, of her "insured status" requirements. See generally, SOC. SEC. DIS. LAW & PROC. IN FED. CT. § 2:17 ("Insured Status"); supra n. 6. So it is questionable whether Lane can claim the lack of notice which, as is further explained below, is a Due Process touchstone. And one's work history is unchangeable, as is all history. A claimant either worked/contributed so many quarters or not. Still, plaintiff is correct that the SSA could have done a better job communicating with her.
Case law also (discussed infra) authorizes remand where the Court itself is confused by an SSA ruling. And while not dispositive, Lane's belief that she could meet the insured status requirements on remand enhances that disposition's attractiveness. Doc. 28 at 3 (representing that, had the SSA given her notice, "she could have . . . provided evidence . . . as to whether or not she had sufficient quarters of coverage to qualify for cash benefits after June 30, 2009"); see also id. (representing that she can show that she was disabled within the "insured status" time now set by the SSA).
At the same time, the SSA's notices to the plaintiff have at best been confusing. At the end of her administrative appeal of the ALJ's denial of that claim, for example, there is this: "Order of Appeals Council . . . CLAIM FOR . . . Disability Insurance Benefits." Doc. 19-2 at 7. And at the front end of that process is the ALJ's hearing notice, which beckoned her to submit any and all evidence that she wished in support of her "application of October 28, 2010
That DIB-based notice conspicuously contrasts with the ALJ's ultimate decision, which on page one identifies her claim for "Hospital Insurance Benefits (Entitlement Federal Employee)."
Meanwhile, and although the ALJ's decision is silent on the topic, Lane does not seriously dispute (as the record now stands) her lack of sufficient earnings to maintain her DIB insured status after June 30, 2009. Her reply brief suggests that she could prove that, doc. 28 at 3, but she cites no supporting evidence in her possession. And while procedural due process doctrine is aimed at preventing arbitrary government entitlement decisions,
Defective-notice-based due process claims also require a showing of prejudice. See generally SOC. SEC. DIS. LAW & PROC. IN FED. CT. § 2:47 (an example of prejudice: when a claimant appeals one issue to the SSA's Appeals Council and the Council denies not only that issue but also — and without prior notice and thus, an opportunity to be heard — adversely re-determines an unappealed, favorable issue); doc. 28 at 9-10 (Lane's reply brief collecting illustrative cases). It is doubtful that Lane has shown that here. She had every incentive, and opportunity, to show the maximum duration of her claimed disability, and the record shows that she did. Conversely, she claims she can, but fails to affirmatively cite evidence in her possession, to show how she would fill in the "insured status" gap (e.g., adduce past-employment records showing that she can satisfy the "quarters" requirement set forth in note 6 supra).
Nevertheless, the ALJ's decision, while premised on the issue of Lane's entitlement "to hospital insurance coverage (Medicare) as a disabled individual in accordance with Section 226(b) of the Social Security Act," doc. 19-2 at 38, reads like a DIB claim. And, as comprehensively set forth above, the entire evidentiary hearing unfolded as a DIB claim (no mention of hospitalization, much less the need for post-hospitalization grade home care, and the ALJ's hearing even concluded with VE testimony concerning Lane's ability to rejoin the workforce). That presents a more fundamental problem because the Court is unable to discern whether the ALJ and Appeals Council (hence, the Commissioner) applied the proper legal standard to Lane's "hospital coverage" Medicare Part A claim. In that regard:
Lane was 61 at the time of the hearing in this case. Doc. 19-2 at 57. She thus failed to meet the age requirement for Medicare Part A. The SSA did cite (doc. 24 at 4) a statutory provision for extending Medicare Part A coverage to those under 65, but the ALJ made no finding that Lane meets the gateway criteria for it, per 42 U.S.C. § 426(b):
42 U.S.C. § 426(b) (emphasis added). The ALJ's ruling in this case makes no mention of hospital insurance benefits (i.e., for post-hospital, extended care services, home health services, or home-hospice care), and the case law illustrates that such claims travel through an entirely different benefits channel than DIB:
Russell v. Sebelius, 686 F.Supp.2d 386, 392 (D. Vt. 2010). Only after that effort fails can the claimant seek further review with the SSA:
Id. at 393; see also Martinelli v. Burwell, 130 F.Supp.3d 781, 790 (W.D.N.Y. 2015) (substantial evidence supported MAC's determination that claimant's care plan for post-hospital combination of impairments did not qualify as skilled nursing services eligible for Part A Medicare coverage), cited in 5 WEST'S FED. ADMIN. PRAC. § 6310 n. 6 (July 2016) (explaining that "Part A of the Medicare Act provides for payment of insurance benefits for acute care given in a hospital and extended care services given in a skilled nursing facility. Medicare does not cover care that is considered to be merely custodial. Thus, personal care services that do not require the skills of qualified technical or professional personnel are not covered by Medicare. Such services include administration of oral medication, bathing and treatment of minor skin problems, assistance in dressing, eating and going to the toilet, and general supervision of previously taught exercises and assistance with walking").
The above evidentiary hearing summarization demonstrates that Lane never invoked that channel and that this case simply went off the rails. Rather than rule that her claim should be denied for lack of insured status, the ALJ simply labeled it a Medicare Part A claim, and for a "Federal Employee" at that, doc. 19-2 at 38, then treated it as a DIB claim, not a "hospital insurance benefits" claim, though he (evidently in afterthought, after re-reviewing the record and discovering Lane's lack of insured status), chose to simply re-label it as a Medicare Part A case. Id. at 38-48.
This much is clear: Lane is not and has not been pursuing "reimbursement for inpatient hospital services, post-hospital extended care services, home health services, and hospice care." Russell, 686 F. Supp. 2d at 392. Instead, she seeks straight-up "cash benefits," as repeatedly noted in her reply brief. Doc. 28 at 2, 3, 4, 6 & 13. The SSA in substance treated her case as a DIB claim but then re-labeled its ruling as a Medicare Part A claim — ignoring the demonstrably different legal channel (set forth supra) through which such claims must travel.
Courts should not affirm SSA rulings that are unclear or require speculation. "If additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded." Davenport v. Colvin, 2015 WL 7769684 at *3 (E.D. Cal. Dec. 3, 2015) (quotes and cite omitted). A remand under 42 U.S.C. § 405(g)
Doc. 19-2 at 45.
Kubitschek & Dubin, SOC. SEC. DIS. LAW & PROC. IN FED. CT. § 2:17 (2016 ed.) (footnotes omitted). "In order to meet the requirements for `insured status,' which is required for Title II benefits, an individual must have 20 quarters of coverage in a 40-quarter period ending with the first quarter of disability. See 42 U.S.C. §§ 416(i)(3)(B), 423(c)(1)(B); 20 C.F.R. § 404.130 (2008)." Tyser v. Astrue, 2010 WL 2541255 at *1 (D. Neb. June 17, 2010). And "[d]isability must be proven to exist during the time that the claimant is insured within the meaning of the special insured status requirements of the Act." Chelette v. U.S. Comm'r, Soc. Sec. Admin., 2016 WL 3156399 at *3 (W.D. La. May 9, 2016).
Here the record shows that the SSA calculated Lane's insured status (using acronyms that only a bureaucrat could love or understand): "Based on 20/40 (or special) DIB and fully insured tests: Does not have DIB insured status in or after quarter of ADO (9/30/2009). . . ." Doc. 19-5 at 17. The Court cannot divine what "ADO" means. The form also reflects something called "Second DLI: 6/30/2009." Id. Presumably "DLI" means "Date Last Insured." Finally, it shows that Lane's earnings were as follows: 2009: $810; 2010: $120. Id. at 18. Lane points to another form in the same document-cluster: doc. 19-5 at 23, cited in her reply brief, doc. 28 at 2 n. 2. That form says this: "Second DLI: 12/31/2014." Doc. 19-5 at 23. And this: "Has DIB insured status in or after quarter of AOD (9/30/2009)." Id. (emphasis added). Lane says that "suggest[s] a date last insured of December 2014; throughout the administrative proceedings . . . and, indeed, until the [SSA] filed [its response brief here, she] and her counsel presumed she was insured for DIB purposes through December 31, 2014." Doc. 28 at 2 n. 2.
Doc. 28 at 13.
SOC. SEC. DIS. LAW & PROC. IN FED. CT. § 2:47 (footnote omitted).
42 U.S.C. § 405(g) (emphasis added). Lane represents that she has new evidence and, given the SSA's confusing notices and treatment of her otherwise convoluted (if not unwitting) DIB/Medicare claim, good cause exists to remand and incorporate her evidence within a Clearly defined claim (i.e., Lane is directed to affirmatively communicate whether she pursuse only a DIB claim here).
