ORDERS:
		
  FINAL ORDER AND DECISION
This
    matter is before the Administrative Law Court (“ALC” or “Court”) for a
    contested case hearing pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2006). Gary
    D. Lawson (“Petitioner”) challenges the Final Agency Determination (“Determination”)
    issued by the South Carolina Budget and Control Board, South Carolina
    Retirement Systems (“Retirement Systems”) on July 26, 2006.  After conducting a
    periodic continuing review of Petitioner’s disability benefits, the Retirement
    Systems discontinued Petitioner’s benefits under the South Carolina Retirement
    System (“SCRS”).   
  After
    notice to the parties, a hearing on the merits was held at the Court in
    Columbia, South Carolina on November 18, 2008.  After considering all the
    evidence and testimony, I affirm the Determination by the Retirement Systems.  
  FINDINGS
    OF FACT 
  Having
    observed the witnesses and exhibits presented at the hearing, and having closely
    passed upon their credibility and, after taking into consideration the burden
    of proof of the parties, I make the following findings of fact by a
    preponderance of evidence: 
  Petitioner 
              1.         Petitioner
    is fifty-one years (51) of age and is a retired member of the SCRS.   
              2.         Petitioner
    began his employment with Spartanburg Regional Medical Center (the “hospital”) as
    a carpenter on September 22, 1986.  On or about June 5, 1987, while in his
    employment at the hospital, he fell from a ladder and injured his lower back.  He
    returned to work at the hospital in September 1988 and continuing working there
    until November 9, 1990.  
  Procedural
    History 
              Initial
    Application (1992) 
              3.         On
    November 30, 1992, Petitioner submitted an application for disability
    retirement benefits to the Retirement Systems.  Petitioner stated in the
    Disability Report, which was attached to his application, that he was
    incapacitated from the further performance of his carpentry job with the
    hospital as the result of “chronic lower back [pain], depression, anxiety,
    sleep disorder, [and] suicidal/homicidal [thoughts].”  (Resp’t Ex. 5, at 33).  
              4.         After
    receipt of the application the Retirement Systems forwarded Petitioner’s file
    to the South Carolina Vocational Rehabilitation Department (“VR”) for an
    evaluation of his medical and vocational records. The file was assigned to a VR
    disability examiner who reviewed Petitioner’s medical records and the
    vocational information submitted by Petitioner’s employer.  Subsequently, the disability
    examiner recommended approval of Petitioner’s disability claim.   
              The
    disability examiner found that, although Petitioner sustained an injury to his lower
    back and had evidence of some degenerative disc disease, he “retain[ed] the
    residual functional capacity to perform the physical activities associated with
    his past work as a carpenter.”  (Resp’t Ex. 5, at 14).  Notwithstanding, the disability
    examiner found that Petitioner lacked the psychological capacity to perform his
    job duties as a carpenter with the hospital because he “exhibited a long term
    depression and anxiety disorder associated with chronic medication abuse as a
    result of chronic pain syndrome.” (Resp’t Ex. 5, at 14).  As a result of this conclusion,
    the disability examiner recommended that Petitioner’s disability claim be
    approved, subject to a continuing disability review of his claim in three
    years.   
  The
    disability examiner’s recommendation was approved by the Retirement Systems’
    Medical Board (“Medical Board”), and Petitioner was retired on a disability
    retirement allowance effective December 29, 1992.  
  First
    Review (1999) 
              5.         Petitioner
    submitted a Continuing Disability Review Report to the Retirement Systems on
    November 24, 1999 as part of his first disability review.  
    Petitioner stated in the report that he remained incapacitated from the
    performance of his prior job duties with the hospital as the result of his “chronic
    back trouble” and depression.  (Resp’t Ex. 4, at 42).  Further, he stated that the
    only medical treatment he had received in the prior year consisted of visits with
    his primary care physician, Dr. Richard Bannon, for “maintenance medication,”
    and occasional visits to local emergency rooms when his maintenance medications
    were insufficient to control his pain.  (Resp’t Ex. 4, at 43).   
              After
    receipt of this report, the Retirement Systems forwarded Petitioner’s file to VR
    for an evaluation of his current disability status.  A VR disability examiner
    obtained records from Petitioner’s primary care physician and concluded that,
    although Petitioner might “still be able to perform all the exertional
    requirements of his former job,” a continuation of his claim was warranted due
    to his anxiety and depression which remained chronic.  (Resp’t Ex. 4, at 3). 
    On May 9, 2000, the Medical Board approved the continuation of Petitioner’s
    disability benefits as recommended, with a review of those benefits scheduled
    in eighteen months. 
              Second
    Review (2001) 
              6.         A
    second review of Petitioner’s claim was conducted in 2001.  Petitioner
    submitted a Continuing Disability Review Report in August 2001 in which he once
    again cited to his “injured back” as the basis for his claim for continued
    disability benefits.  He listed visits to his new internist, Dr. Suzanne
    Kovacs, and visits to a hospital emergency room as his only treatment by
    medical providers during the past year.  
              Upon
    receipt of the report, the Retirement Systems forwarded Petitioner’s file to VR
    for an evaluation of his eligibility for continued disability retirement
    benefits.  After it had obtained records from Petitioner’s primary care
    physician and the hospital’s emergency room, a VR disability examiner recommended
    that Petitioner’s retirement benefits be continued, subject to another
    re-examination in three years.  The disability examiner found that there had
    not been any significant improvement in Petitioner’s medical condition, noting
    Petitioner’s continued depression and hospitalization for an intentional
    overdose of pain medication within the previous year.  Based upon the
    recommendation, the Medical Board approved the continuation of Petitioner’s
    disability benefits, with a third review of Petitioner’s claim scheduled for
    2004.   
              Third
    Review (2004) 
              7.         On
    August 12, 2004, Petitioner submitted a third Continuing Disability Review
    Report to the Retirement Systems.  Again, he cited lower back pain as the basis
    for his benefits claim.  His file was forwarded to VR for an evaluation.  After
    review of his medical records (which included records from the South Carolina
    Department of Corrections), the
    disability examiner recommended a denial of Petitioner’s claim for continued
    disability retirement and a cessation of the benefits.  The disability examiner
    noted that a South Carolina Department of Corrections physician, who had treated
    Petitioner during the period he was incarcerated, had found no physical
    evidence of disability.  Further, the disability examiner found that Petitioner’s
    prison medical records contained no history of any disabling psychiatric
    condition.   
              Based
    upon the disability examiner’s recommendation, the Medical Board denied
    Petitioner’s claim for continued disability retirement benefits and held that
    the benefits must be discontinued effective September 28, 2004.   
              8.         Petitioner
    requested an administrative review of the Medical Board’s finding by the
    Director of the Retirement Systems, Peggy G. Boykin. 
    Upon receipt of the request, the Director appointed Joel D. Leonard, an
    independent vocational consultant, to review Petitioner’s claim.   
  Mr.
    Leonard conducted an administrative conference with Petitioner on July 13, 2006. 
    At the conference, Mr. Leonard reviewed Petitioner’s disability file and records
    Petitioner brought to the conference.  Subsequently, he found that the record
    did not sufficiently support a finding of permanent incapacity and recommended
    that Petitioner’s disability retirement benefits be discontinued.  In
    particular, Mr. Leonard found that the “modest references” to depression and
    anxiety in Petitioner’s medical records did not demonstrate “the presence of
    any symptoms or impairments that could be correlated to any permanent,
    functional limitations.”  (Resp’t Ex. 1, at 6).  Similarly, with regard to
    Petitioner’s lower back problems, Mr. Leonard agreed that Petitioner “may be
    restricted in the performance of certain physical tasks” but, he found no “significant,
    cumulative findings” to suggest that Petitioner was permanently incapacitated
    within the parameters of his job as a carpenter.  (Resp’t Ex. 1, at 6).   
              On
    July 26, 2006, Director Boykin issued a Final Agency Determination in which she
    discontinued Petitioner’s disability retirement benefits.  On August 14, 2006,
    Petitioner filed a request for a contested case hearing with the ALC to
    challenge the Final Agency Determination. 
  Petitioner’s
    Job Duties 
              9.         Petitioner’s
    duties as a carpenter at the hospital included various tasks associated with
    construction renovation and remodeling.  During his conference with Mr.
    Leonard, he stated that he worked in a supervisory role and that his duties
    primarily consisted of directing activities of a particular work crew.  He characterized
    his position as an “overseer” or “lead crewman.” (Resp’t Ex. 5, at 35; Resp’t
    Ex. 7, at 24).  Although he occasionally lifted significant weight, or
    performed strenuous tasks in his job duties, the primary exertional demands of his
    job involved moving about the hospital, climbing ladders, and monitoring the
    activities of his crew.  In his review, Mr. Leonard classified Petitioner’s job
    within the “medium and skilled” designation.  (Resp’t Ex. 1, at 5).  
  Medical
    Condition of Petitioner    
              10.       Petitioner
    contends that he remains disabled from performing his duties as a carpenter at
    the hospital due to a sleep disorder, depression, back pain, and the results of
    chronic usage of prescription pain medication. Each of these conditions is
    addressed below. 
              Psychological
    Conditions 
              11.       Petitioner’s
    initial approval for disability retirement benefits was based upon a finding of
    long term depression and anxiety disorder associated with chronic medication
    abuse, not from issues related to the lower back injury.    
  The
    medical records of  Petitioner’s primary care physicians since 2001 contain general
    references to anxiety and depression, with treatment consisting of antidepressant
    medications, such as Zoloft.  However, beyond such general references, his
    medical records contain no findings that Petitioner is suffering from anxiety,
    depression, or any other psychological disorder to such a degree that he is
    incapacitated from performing his prior job duties as a carpenter. 
    Similarly, the medical records associated with the time he was incarcerated contain
    no suggestion that he suffered from a serious, disabling psychological
    disorder.  Moreover, although Petitioner has been treated for depression on
    occasion by his internists, he is not being treated by a psychiatrist, or other
    mental health specialist, is not involved in any therapy or other mental health
    treatment, and does not appear to have sought any such treatment in recent
    years for his allegedly disabling psychological condition(s).    
  There
    are no findings or treatment in Petitioner’s medical records associated with this
    claim for disability retirement benefits which suggest that he currently
    suffers from depression or anxiety of such severity to prevent him from
    performing the job duties of a carpenter or, that any such psychological
    problems he may have are incapable of treatment and are permanently disabling. 
              Lower
    Back Pain 
              12.       Petitioner
    contends that since he fell off of a ladder at work in 1987, he has suffered
    from chronic and severe lower back pain which has impaired his ability to
    engage in physical tasks, such as walking and standing.  There is no question
    that the residual effects from his work-related back injury in 1987 limit his
    ability to perform certain physical tasks.  However, similar to his
    psychological complaints, there are no clinical findings or other objective
    evidence in the medical records which establish that Petitioner’s lower back
    condition currently precludes him from performing his past job duties. 
    Although his medical records are replete with references to his chronic lower back
    pain, those references are based almost entirely upon his subjective reports of
    pain and are not supported by any objective diagnostic findings, such as X-ray
    or MRI results.   Further, these references are essentially limited to
    Petitioner’s occasional trips to the emergency room and regular visits to his
    primary care physicians during the late 1990s and early 2000s.   
              Further,
    Petitioner’s records contain no reports from any orthopedic specialists
    regarding the nature or severity of his lower back condition.  In addition, there
    are no recent medical records, from any source, providing significant
    commentary concerning his lower back condition.  However, a Department of
    Corrections physician found in 2003 that Petitioner was able to touch his toes
    and had no physical evidence of disability.  Put simply, whatever the severity
    of Petitioner’s 1987 accident, the medical records submitted in connection with
    his claim for continued disability retirement benefits do not support a finding
    that Petitioner is presently permanently incapacitated from the further
    performance of his former job duties as a lead crewman carpenter as a result of
    lower back pain. 
              Sleep
    Disorder 
              13.       In
    his Pre-Hearing Statement, Petitioner also cites to a “sleep disorder” as a
    basis for his claim for continued disability benefits.  (Pet’r Pre-Hearing
    Statement of Nov. 13, 2008, ¶ 6.)  Petitioner also refers to a “sleep disorder”
    in the Disability Report that accompanied his initial application for
    disability retirement benefits.  (Resp’t Ex. 5, at 33).  While there are some
    scattered mentions of insomnia in his medical records, there are no medical
    records in Petitioner’s file which suggest or opine that any insomnia or other
    “sleep disorder” that Petitioner may have is of such severity that it
    incapacitates him from performing his prior job as a carpenter, either in the
    short term or on a permanent basis. 
              Chronic
    Abuse of Prescription Pain Medication 
              14.       Dating
    back to the initial approval of Petitioner’s disability claim in 1993, Petitioner’s
    claim for disability benefits have been colored by his chronic abuse of
    prescription pain medications.  Petitioner’s medical records contain at a
    minimum a thirteen-year history of chronic abuse of prescription pain
    medications, including Lortab (a mixture of aacetaminophen and
    hydrocodone also sold as Vicodin), Valium, and Oxycontin.  Petitioner has developed
    a dependence on these medications, has engaged in drug-seeking behavior, has overdosed
    on medications, and has engaged in criminal activity in efforts to acquire 
    medications. Given this history, it is difficult to assess the extent to which
    Petitioner’s physical complaints of lower back pain and psychological
    complaints of depression and anxiety are based upon an underlying medical
    condition or are merely products of his chronic medication abuse.   
              15.       Despite
    Petitioner’s chronic dependence upon prescription pain killers, it is not
    evident that Petitioner has received comprehensive treatment for his substance
    abuse, either on an inpatient or outpatient basis.  Rather, the record reflects
    that Petitioner changed physicians when his drug abuse was questioned by his treating
    physician.  As a consequence, Petitioner’s file contains no records which
    demonstrate that his dependence on prescription pain medication incapacitates
    him from the performance of his prior carpentry job, and, in particular, no
    records establishing that, even if he is currently incapacitated, his substance
    abuse is so intractable that he could not, with proper treatment, resume his
    prior position as a carpenter. 
  Conclusion 
  In
    sum, the medical records applicable to Petitioner’s claim for continued
    disability retirement benefits do not establish that he is at the present time permanently
    incapacitated from the further performance of his prior job duties as a
    supervising carpenter at the hospital.  
  CONCLUSIONS
    OF LAW 
  Based
    upon the above Findings of Fact, I conclude the following as a matter of law: 
  General 
  1.         This
    Court has jurisdiction over this contested case pursuant to S.C. Code Ann. §§
    9-21-60 (Supp. 2007), S.C. Code Ann. §1-23-600(A) (as amended 2008 Act No. 334),
    and S.C. Code Ann. §§ 1-23-310 et seq. (2005 and as amended 2008
    Act No. 334). 
  2.         The
    basic question in this matter is whether the medical evidence related to Petitioner’s
    capacity to perform his prior job duties demonstrates that he is entitled to
    continue to receive disability retirement benefits pursuant to S.C. Code Ann. §
     9-1-1540 (Supp. 2007).  That section provides that qualifying members of the
    South Carolina Retirement System: 
  may be retired by
    the [State Budget and Control] [B]oard not less than thirty days and not more
    than nine months next following the date of filing the application on a
    disability retirement allowance if the system, after a medical examination of
    the member, certifies that the member is mentally or physically
    incapacitated for the further performance of duty, that the incapacity is
    likely to be permanent, and that the member should be retired. 
  Id. (emphasis added).   
              3.         Pursuant
    to S.C. Code Ann. § 9-1-1570 (1986), the Retirement Systems may condition the
    continuation of disability benefits awarded under § 9-1-1540 upon a periodic
    re-examination of a disability retiree’s medical condition to determine whether
    he or she still meets the requirements for disability retirement benefits. 
  4.         As
    the moving party in this matter, Petitioner bears the burden of establishing,
    by a preponderance of the evidence, that he satisfies the requirements of §
    9-1-1540 and is entitled to the disability retirement benefits he seeks.  See Leventis v. S.C. Dep’t of Health & Envtl. Control, 340 S.C. 118,
    132-33, 530 S.E.2d 643, 651 (Ct. App. 2000) (holding that the burden of proof
    in administrative proceedings generally rests upon the party asserting the
    affirmative of an issue); see also 73A C.J.S. Public Administrative
    Law and Procedure § 128, at 35 (1983) (“In administrative proceedings, the
    general rule is that an applicant for relief, benefits, or a privilege has the
    burden of proof, and the burden of proof rests upon one who files a claim with
    an administrative agency to establish that required conditions of eligibility
    have been met.”).  Specifically, Petitioner must demonstrate (1) that he is
    mentally or physically incapacitated from the further performance of his job
    duties as a carpenter at the hospital, (2) that any such incapacity is “likely
    to be permanent,” and (3) that the circumstances are such that he “should be
    retired.”  S.C. Code Ann. § 9-1-1540.  
  5.         The
    South Carolina General Assembly has established various procedures for members
    to comply with when seeking a resolution of disputes and claims with the SCRS. 
    A member may ask the Director to review an initial decision by the SCRS, which
    is unfavorable.  The claimant has the opportunity to present his or her claim
    in writing.  The Director, or a person designated by the Director, may conduct
    a conference concerning the claim prior to the issuance of a final agency
    determination by the Director.  The Director must make a final agency
    determination in writing concerning the claimant’s appeal.  S.C. Code Ann. §
    9-21-50 (Supp. 2007). 
  6.         The
    written decision by the Director is the final decision of the SCRS concerning
    the claimant’s appeal.  S.C. Code Ann. § 9-21-50 (Supp. 2007). If this final
    agency determination is unfavorable to the member, the member may request a
    hearing with the ALC.  S.C. Code Ann. § 9-21-60 (Supp. 2007). 
  7.         The
    chief administrative law judge of the ALC assigns each case to an
    administrative law judge who hears the case de novo in accordance with
    the rules of procedure of the ALC.  S.C. Code Ann. §§ 1-23-600(B) (as amended
    2008 Act No. 334) and 9-21-60 (Supp. 2007).  
  8.         After
    conducting a hearing, the assigned administrative law judge issues a final
    decision in a written order which must contain separate findings of fact and
    conclusions of law.   S.C. Code Ann. § 1-23-350 (Supp. 2007) and ALC Rule 29©. 
  9.         An
    agency decision must be reached utilizing reasoned judgment and must be based
    upon adequate determining principles and a rational basis.   City of
    Columbia v. Bd. Of Health and Envtl. Control, 292 S.C. 199, 355 S.E.2d 536
    (1987).  
  10.       The
    trier of fact must weigh and pass upon the credibility of the evidence
    presented.  S.C. Cable Television Ass’n v. S. Bell Tel. and Tel. Co., 308
    S.C. 216, 417 S.E.2d 586 (1992).  The trial judge who observes a witness is in
    the best position to judge the witness’ demeanor and veracity and evaluate his
    testimony.  McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322
    (1982).   
  DISCUSSION 
              In
    the instant matter, Petitioner contends that he should continue to receive
    disability retirement benefits as the result of his depression, back pain, and
    a sleep disorder.  However, neither Petitioner’s current nor his historical
    medical records demonstrate that he satisfies the eligibility requirements for
    the continuation of his disability retirement benefits.  As noted above, while
    Petitioner did suffer a lower back injury on the job in 1987 and has been
    diagnosed with depression and anxiety in the past, the medical records
    presented in this matter do not present any concrete, medical evidence that
    these conditions are so severe as to incapacitate him from performing his prior
    – largely supervisory – duties as a lead crewman carpenter at the hospital.  In
    particular, the record is devoid of any commentary from medical specialists—for
    example, orthopedic surgeons or psychiatrists—that would establish the nature
    or extent of Petitioner’s conditions.  Further, the only recent medical records
    submitted in connection with Petitioner’s claim for the continuation of his
    disability benefits are the medical records from his incarceration between 2003
    and 2005; these records do not reveal any basis for a disability claim, and, in
    fact, suggest just the opposite.  Further, the medical records from Dr. Ronald
    Littlefield, who treated Petitioner in 2005 and 2006, outline a fairly mundane
    course of medical treatment for conditions such as hypertension, sinusitis,
    bronchitis, and back pain.     
  To
    the extent any of Petitioner’s historical medical records predating 2001 which suggest
    that his conditions may presently incapacitate him from performing the job
    duties of a carpenter, they do not support a finding that any such incapacity
    is likely to be permanent.  Those records do not establish that the
    psychological complaints that formed the basis for the prior approval of
    Petitioner’s disability claim are of “such nature that [they] will, regardless
    of medical and other treatment, continue throughout his lifetime” so as to deprive
    him of the ability to perform his prior job duties.  See Ex parte
    McFaddin, 254 S.C. 270, 274, 175 S.E.2d 218, 221 (1970).  In McFaddin,
    the South Carolina Supreme Court denied disability retirement to a judge who
    claimed disability based upon chronic anxiety and depression and resulting
    alcohol abuse because he had made “no showing that medical treatment is not
    available to provide relief from the emotional discomforts and other conditions
    described in the medical reports” and thus had not demonstrated that his
    disability was permanent in nature as required by statute.  Id. at 274,
    175 S.E.2d at 220.  Such is the case here. Even if this Court were to conclude
    that Petitioner suffers from depression or a dependence upon prescription pain
    medication that currently precludes him from resuming his prior employment,
    there is no support in Petitioner’s medical records from which this Court could
    make a finding that there is no treatment available that could improve
    Petitioner’s condition such that he could return to his carpentry work. 
  Finally,
    in view of Petitioner’s failure to pursue meaningful treatment for his
    psychological conditions, sleep disorder, and chronic prescription drug abuse,
    he must also be found to have failed to demonstrate that he “should be retired”
    as a result of those conditions.  It has been recognized under the “should be
    retired” element of the statutory criteria for disability retirement benefits
    that “[i]t is axiomatic that [a member] should not be entitled to receive
    disability retirement benefits on the basis of a condition for which [the
    member] refuses to seek treatment.” Graham v. S.C. Budget & Control Bd.,
    S.C. Retirement Sys., No. 04-ALJ-30-0160-CC, at 15 (S.C. Admin. Law Ct.
    Dec. 30, 2004).  In Graham, the court found that a member seeking
    disability retirement benefits “should not be retired,” because, among other
    things, she was not compliant with taking her medications as prescribed and did
    not seek treatment for her alleged psychological conditions.  Id.  The
    same holds true here.  Petitioner has often been noncompliant with his
    physicians’ orders and has consistently refused to seek treatment for his
    psychological complaints and substance abuse problem.  Accordingly, Petitioner is
    not entitled to receive disability retirement benefits.    
  ORDER 
  Based
    upon the foregoing Findings of Fact and Conclusions of Law, Petitioner has not
    met  his burden of demonstrating that he satisfies the requirements for the
    continued award of disability retirement benefits, and as such, the Court finds
    that Petitioner is not entitled to any further disability retirement benefits
    pursuant to § 9-1-1540. Accordingly, it is hereby  
  ORDERED that Petitioner’s claim for continued disability retirement benefits is DENIED. 
  AND
    IT IS SO ORDERED. 
  ______________________________ 
  Marvin F.
    Kittrell 
  December 22, 2008                                         Chief
    Judge 
  Columbia, South Carolina 
 
 
  
 
  
 
  
 
  
 
  
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