Opinion
NO. 2013-CA-001886-MR
05-15-2015
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, DEPARTMENT FOR COMMUNITY BASED SERVICES, APPEAL BOARD FOR PUBLIC ASSISTANCE APPELLANT v. BARBARA BARTLEY APPELLEE
BRIEFS FOR APPELLANT: Timothy J. Salansky Cabinet for Health and Family Services Frankfort, Kentucky BRIEF FOR APPELLEE: Kristie M. Goff Prestonsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 08-CI-00886
OPINION
AFFIRMING
BEFORE: D. LAMBERT, J. LAMBERT, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Commonwealth of Kentucky, Cabinet for Health and Family Services, Department for Community Based Services, Appeal Board for Public Assistance (Cabinet) brings this appeal from an October 1, 2013, opinion and order of the Pike Circuit Court reversing and remanding a final order of the Appeal Board for Public Assistance determining that Barbara Bartley is not permanently and totally disabled and, thus, not entitled to Medicaid insurance benefits. We affirm.
On May 30, 2006, Bartley filed an application with the Cabinet for Medicaid insurance benefits claiming to be permanently and totally disabled. After initially being denied Medicaid benefits by a medical review team, Bartley requested a hearing. A hearing officer conducted a hearing and rendered a recommended order to deny Bartley's application for Medicaid. On February 21, 2008, the Commissioner of the Cabinet adopted the recommended order and, likewise, denied Bartley's Medicaid application. Bartley undertook an appeal, and the Appeal Board rendered an order affirming the denial of Bartley's application in May 2008.
We have thoroughly reviewed the administrative record in this case and believe it fails to comply with the requirements for organization of an administrative record per Monumental Life Insurance Company v. The Department of Revenue, 201 S.W.3d 500 (Ky. 2006). Kentucky Revised Statutes 13B.130. Herein, the administrative record lacked a content index and was entirely unbound.
Bartley then filed a petition for judicial review with the Pike Circuit Court on June 25, 2008. By opinion and order entered October 1, 2013, the circuit court reversed the Appeal Board and concluded:
The record reflects that this case was inexplicably inactive in the circuit court during most of its tenure below, there having been at least three notices to dismiss for lack of prosecution issued during the case.
The Court has reviewed the evidence as a whole, and finds that the conclusions of the Final Order are without support of substantial evidence on the whole record. KRS 13B.150(2)(c). [Bartley] has demonstrated at least one severe medically determinable impairment,
and a permanent medical condition that would result in the "grids" of 20 CFR Part 404, Subpart P, Appendix 2, being applied in her claim.This appeal follows.
This appeal emanates from administrative proceedings to determine Bartley's entitlement to Medicaid insurance benefits. Judicial review of the Cabinet's decision is limited. Kentucky Revised Statutes (KRS) 13B.150(2) sets forth the proper judicial standard of review:
(2) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the final order or it may reverse the final order, in whole or in part, and remand the case for further proceedings if it finds the agency's final order is:Our analysis shall proceed accordingly.
(a) In violation of constitutional or statutory provisions;
(b) In excess of the statutory authority of the agency;
(c) Without support of substantial evidence on the whole record;
(d) Arbitrary, capricious, or characterized by abuse of discretion;
(e) Based on an ex parte communication which substantially prejudiced the rights of any party and likely affected the outcome of the hearing;
(f) Prejudiced by a failure of the person conducting a proceeding to be disqualified pursuant to KRS 13B.040(2); or
(g) Deficient as otherwise provided by law.
To be entitled to Medicaid benefits, it was incumbent upon Bartley to demonstrate that she was permanently disabled per 42 U.S.C. § 423(d) and 42 U.S.C. § 1382c(a)(3). 907 KAR 20:005, Section 5(7) (2015). To effectuate these Sections of the U.S.C., the Social Security Administration promulgated 20 C.F.R. § 404.1520(a) and 20 C.F.R. § 416.920(a) to provide a five-step "sequential evaluation process" for determining whether a claimant is permanently and totally disabled:
20 C.F.R. § 404.1520 is related to Retirement, Survivors, and Disability Insurance, and 20 C.F.R. § 416.920 is related to Supplemental Security Income For the Aged, Blind, and Disabled.
--------
(4) The five-step sequential evaluation process. The sequential evaluation process is a series of five "steps" that we follow in a set order. See paragraph (h) of this section for an exception to this rule. If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step. If we cannot find that you are disabled or not disabled at a step, we go on to the next step. Before we go from step three to step four, we assess your residual functional capacity. (See paragraph (e) of this section.) We use this residual functional capacity assessment at both step four and step five when we evaluate your claim at these steps. These are the five steps we follow:
(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. (See paragraph (b) of this section.)
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will
find that you are not disabled. (See paragraph (c) of this section.)
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled. (See paragraph (d) of this section.)
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. See paragraphs (f) and (h) of this section and § 404.1560(b).
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. See paragraphs (g) and (h) of this section and § 404.1560(c).
(5) When you are already receiving disability benefits. If you are already receiving disability benefits, we will use a different sequential evaluation process to decide whether you continue to be disabled. We explain this process in § 404.1594(f).
(b) If you are working. If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience.
(c) You must have a severe impairment. If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.
We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.
(d) When your impairment(s) meets or equals a listed impairment in appendix 1. If you have an impairment(s) which meets the duration requirement and is listed in appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.
(e) When your impairment(s) does not meet or equal a listed impairment. If your impairment(s) does not meet or equal a listed impairment, we will assess and make a finding about your residual functional capacity based on all the relevant medical and other evidence in your case record, as explained in § 404.1545. (See paragraph (g)(2) of this section and § 404.1562 for an exception to this rule.) We use our residual functional capacity assessment at the fourth step of the sequential evaluation process to determine if you can do your past relevant work (paragraph (f) of this section) and at the fifth step of the sequential evaluation process (if the evaluation proceeds to this step) to determine if you can adjust to other work (paragraph (g) of this section).
(f) Your impairment(s) must prevent you from doing your past relevant work. If we cannot make a determination or decision at the first three steps of the sequential evaluation process, we will compare our residual functional capacity assessment, which we made under paragraph (e) of this section, with the physical and mental demands of your past relevant work. See paragraph (h) of this section and § 404.1560(b). If you can still do this kind of work, we will find that you are not disabled.
(g) Your impairment(s) must prevent you from making an adjustment to any other work.
(1) If we find that you cannot do your past relevant work because you have a severe impairment(s) (or
you do not have any past relevant work), we will consider the same residual functional capacity assessment we made under paragraph (e) of this section, together with your vocational factors (your age, education, and work experience) to determine if you can make an adjustment to other work. (See § 404.1560(c).) If you can make an adjustment to other work, we will find you not disabled. If you cannot, we will find you disabled.
(2) We use different rules if you meet one of the two special medical-vocational profiles described in § 404.1562. If you meet one of those profiles, we will find that you cannot make an adjustment to other work, and that you are disabled.
At step two in the evaluation process, 20 C.F.R. 404.1520(4)(ii) mandates that the claimant demonstrate "a severe medically determinable physical or mental impairment that meets the duration requirement." To qualify as a severe medical impairment, the impairment must "significantly limit[ ] your physical or mental ability to do basic work activities." 20 C.F.R. 404.1520(5)(c). And, "age, education, and work experience" are not to be considered at this step. Id. In its final order, the Appeal Board found that Bartley failed to prove by substantial evidence that she suffered from such a severe medical impairment.
The administrative record included medical records from several of Bartley's treating physicians and other medical professionals. There were psychotherapy notes from 2006 and 2007, wherein Bartley was diagnosed with major depressive disorder. Also, medical records were included from her family physician, Dr. E.D. Roberts; however, these records are handwritten and unintelligible. Some surgical notes were included, but these were from surgical operations for which no demonstrable impairment or disability resulted. Dr. Ronald F. Mann completed a disability evaluation on September 18, 2006. Therein, Dr. Mann records that Bartley's chief complaints were "back pain in the lumbar spine and radiating into her right leg anteriorly and left leg posteriorly" and neck pain. Dr. Mann opined that Bartley would have no issues sitting and minimal issues related to standing and walking. But, Dr. Mann imposed a 20 pound lifting limit on Bartley and stated that "she would be precluded from squatting, kneeling, or crawling."
Based upon the medical evidence, we agree with the circuit court that Bartley demonstrated by substantial evidence a severe medical impairment. Dr. Mann noted that Bartley suffered from back pain that radiated into her right and left legs. Her back condition was sufficiently severe that Dr. Mann imposed a 20 pound lifting limit on Bartley and entirely precluded her from squatting, kneeling and crawling. This evidence alone substantially demonstrates that Bartley suffered from a severe medical impairment that significantly limited her physical ability to work. Consequently, we, as did the circuit court, conclude that Bartley "demonstrated at least one severe medically determinable impairment, and a permanent medical condition that would result in the 'grids' . . . being applied to her claim." We, thus, affirm the circuit court's opinion and order reversing and remanding the final order of the Appeal Board.
For the foregoing reasons, the opinion and order of the Pike Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Timothy J. Salansky
Cabinet for Health and Family
Services
Frankfort, Kentucky
BRIEF FOR APPELLEE: Kristie M. Goff
Prestonsburg, Kentucky