ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
The
above-captioned case is before the Court pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2006) for a contested case hearing. In this matter, Petitioner Valerie D.
Erwin (“Petitioner”) challenges the September 6, 2007 Final Agency
Determination issued by Respondent South Carolina Budget and Control Board,
South Carolina Retirement Systems (“Retirement Systems”), in which the
Retirement Systems denied her application for disability retirement benefits
under S.C. Code Ann. § 9-1-1540 (Supp. 2006). Respondent South Carolina
Retirement Systems contends that Petitioner’s application for disability
retirement benefits was properly denied and requests that the Court issue an order
denying disability retirement benefits to Petitioner.
After
timely notice to the parties, a hearing of this matter was held on November 20, 2007, at the Administrative Law Court in Columbia, South Carolina. Based
upon the evidence presented at that hearing and upon the applicable law, I find
that Petitioner is not entitled to disability retirement benefits and that the
Retirement Systems properly denied her application for such benefits.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility and taking into consideration the burden of persuasion
by the parties, I make the following Findings of Fact by a preponderance of
evidence:
Procedural
History
1. Petitioner
Valerie Erwin is a sixty-year-old retired member of the South Carolina
Retirement System (“SCRS” or “System”), who retired from state employment with
the Medical University of South Carolina (MUSC) on May 1, 2007, with twenty-two
years and eleven months of service credit in the System. Prior to her
retirement, Petitioner was employed as a patient registration representative at
MUSC between June 4, 1984, and April 10, 2007, when she left work on sick
leave, complaining primarily of exhaustion and tightness in her chest as the
result of multiple medical problems. On April 27, 2007, Petitioner submitted an application for disability retirement benefits to the Retirement
Systems. In the Member’s
Disability Report submitted in connection with her application, Petitioner
contends that she is disabled from further performing her job as a patient
registration representative with MUSC as a result of diabetes, chronic obstructive
pulmonary disease (COPD), and a history of heart attacks.
2. Upon
receiving Petitioner’s application and related documents, the Retirement Systems
forwarded Petitioner’s file to the South Carolina Department of Vocational
Rehabilitation (VR) for a review of Petitioner’s disability claim.
As part of her review of the claim, VR Disability Examiner Tammy L. Link
collected Petitioner’s medical records from her treating physicians and
obtained a Physical Residual Functional Capacity Assessment from Dr. Jean
Smolka based upon those records. After reviewing that information, Ms. Link
issued a recommendation on June 15, 2007, in which she found that, while
Petitioner does have a history of heart disease, COPD, and diabetes that does
put some limits on her ability to perform certain physical tasks, she retains
the residual functional capacity to perform her job duties as a patient
registration representative and “would be able to return to past work.” Respt.
Ex. #1, at 36. Accordingly, Ms. Link recommended that Petitioner’s application
for disability retirement benefits be denied. On June 21, 2007, the Retirement Systems denied Petitioner’s application for disability retirement as
recommended by Ms. Link.
3. Petitioner
requested administrative review of the denial of her application before Peggy
G. Boykin, the Director of the Retirement Systems, and, on July 9, 2007, Director Boykin appointed an independent vocational consultant, Leanna Hollenbeck, MS, CLCP, CRC, CCM, to review Petitioner’s claim for disability benefits. As part of her
review of Petitioner’s disability claim, Ms. Hollenbeck held an administrative
conference with Petitioner on August 30, 2007, and reviewed Petitioner’s entire
disability file, including all of the medical records collected by the VR
Disability Examiner and all medical and employment records submitted to the
Retirement Systems by Petitioner. Based upon her review of the medical and
vocational records, Ms. Hollenbeck issued a recommendation to the Retirement
Systems on September 4, 2007, in which she concluded that Petitioner’s
application for disability retirement benefits should be denied. In
particular, while Ms. Hollenbeck recognized that Petitioner does have several
medical problems that affect her ability to work, Ms. Hollenbeck ultimately
determined that she could not “recommend that [Petitioner] receive disability
retirement benefits due to her long term and continued noncompliance with her
physician’s instructions to stop smoking, lose weight and exercise to improve
her health.” Respt. Ex. #1, at 8.
4. On
September 6, 2007, Director Boykin issued a Final Agency Determination
adopting Ms. Hollenbeck’s recommendation and denying Petitioner’s application
for disability retirement benefits. On September 20, 2007, Petitioner filed a request for a contested case hearing before the Administrative Law Court seeking
review of that Final Agency Determination.
Petitioner’s
Job Duties
5. In
this matter, Petitioner contends that she is disabled from performing her prior
job duties as a patient registration representative in the trauma center at
MUSC. As the title implies, in her position as a patient registration
representative, Petitioner was responsible for registering patients with MUSC
when they presented to the hospital through the trauma center. In performing
these duties, Petitioner obtained demographic and financial information from
patients, provided registration paperwork to patients and their families, and
processed the registration information in the hospital computer system. These
duties were largely sedentary in nature, with Petitioner sitting for
approximately five hours of an eight-hour workday, and did not require
Petitioner to perform any significant bending, stooping, climbing, or lifting,
other than lifting light office supplies and paperwork. Accordingly, in her
review of Petitioner’s claim, Ms. Hollenbeck classified Petitioner’s job as
“Sedentary.” Respt. Ex. #1, at 5.
Petitioner’s
Medical Conditions
6. As
noted above, Petitioner contends that she is disabled from the further
performance of her job duties as a patient registration representative with
MUSC as a result of exhaustion and chest tightness caused by diabetes mellitus,
COPD, and her prior history of heart attacks. Petitioner’s medical records
confirm that she has been diagnosed with diabetes mellitus and COPD for more
than ten years, and that she continues to carry diagnoses for those conditions.
Petitioner has also carried a diagnosis for coronary artery disease that has
periodically caused certain acute coronary syndromes, including unstable angina
and a reported history of heart attacks. However, the most remarkable feature
of Petitioner’s medical records is not necessarily her serious medical
conditions, but rather her long history of failing to comply with the advice of
her doctors with regard to the treatment for those medical problems. Each of
these matters will be discussed in turn.
Diabetes
Mellitus
7. Diabetes
mellitus is a condition of “impaired insulin secretion and variable degrees of
peripheral insulin resistance leading to hyperglycemia.” The Merck Manual
of Diagnosis and Therapy 1274 (Mark H. Beers, M.D. et al. eds., 18th ed. 2006).
Complications of the disease include “vascular disease, peripheral neuropathy,
and predisposition to infection,” and the disease is generally treated with
“diet, exercise, and drugs that reduce glucose levels, including insulin and
oral antihyperglycemic drugs.” Id. As noted above, Petitioner has been
diagnosed with diabetes mellitus for over ten years, and she reports being
first diagnosed with the condition in 1995. Petitioner continues to receive
treatment for her diabetes, largely centered around adjusting her diabetes
medications and taking steps to improve her control of her blood sugar level.
Chronic
Obstructive Pulmonary Disease (COPD)
8. Chronic
Obstructive Pulmonary Disease, commonly abbreviated as COPD, is “a partially
reversible airflow obstruction caused by an abnormal inflammatory response to
toxins, often cigarette smoke.” The Merck Manual of Diagnosis and Therapy, supra, at 400. The primary symptoms of the disease, which encompasses
both chronic obstructive bronchitis and emphysema, include “productive cough
and dyspnea that develop over years,” and common signs of the condition include
“decreased breath sounds and wheezing.” Id. Petitioner has been
diagnosed with COPD for over ten years, and continues to receive treatment for
the condition and related ailments, such as bronchitis. Although Petitioner
does have episodic exacerbations of her COPD that require medical attention,
her COPD also goes through periods of remission during which her pulmonary
symptoms are not as severe.
Coronary
Artery Disease (CAD)
9. Coronary
artery disease is a condition that “involves impairment of blood flow through
the coronary arteries, most commonly by atheromas.” The Merck Manual of
Diagnosis and Therapy, supra, at 626. Clinical presentations of the
disease include silent ischemia, angina pectoris, and acute coronary syndromes,
such as unstable angina and myocardial infarctions. Id. Prevention of
coronary artery disease “consists of modifying reversible risk factors (eg,
hypercholesterolemia, physical inactivity, smoking)” and treatment for the
disease includes “drugs and procedures to reduce ischemia and restore or
improve coronary blood flow.” Id. Petitioner has been diagnosed with
coronary artery disease for more than ten years, dating back at least to a pair
of heart attacks she suffered in 1995. Petitioner’s most recent acute coronary
symptoms occurred in February 2002, when she was admitted to the hospital for
unstable angina. While Petitioner undoubtedly continues to have coronary artery
disease, her more current treatment records tend to focus on related
cardiovascular conditions, such as high blood pressure (hypertension) and high
cholesterol levels (hyperlipidemia), rather than on coronary artery disease
itself.
Petitioner’s Non-compliance
with Medical Treatment
10. However,
the most striking characteristic of Petitioner’s medical records is not the
progression of her medical conditions, but her record of failing to comply with
the treatments prescribed by her physicians for those serious medical
conditions. Although Petitioner has, since the Retirement Systems’ denial of
her claim, made a greater effort to follow her doctors’ recommendations
regarding her health, her MUSC Patient Chart is, in large part, a ten-year
record of Petitioner’s non-compliance with the advice of her treating
physicians, as described in detail below.
Petitioner’s
Failure to Stop Smoking
11. Petitioner
has been a cigarette smoker for over forty years, smoking three packs a day
until cutting back to one pack a day within the past two years. Given her
diabetes, chronic obstructive pulmonary disease, and coronary artery disease,
Petitioner’s physicians at MUSC have strongly advised her to quit smoking at nearly
all of her visits to the practice and have routinely provided her with smoking
cessation counseling and medications. In particular, Petitioner’s physicians
have routinely and strenuously warned her regarding the effect of her continued
smoking upon her serious heart, lung, and diabetic conditions. See, e.g.,
Respt. Ex. #2, at 114 (noting that, upon being discharged from the hospital
after an exacerbation of her COPD, Petitioner was “strongly advised to quit
smoking”), 219-20 (stating that the physician “again counseled [Petitioner] on
the necessity for her to discontinue smoking given her asthma and coronary
artery disease”), 225 (stating that the physician “counseled [Petitioner] once
again on [the] likely effect of her continued smoking on her co-morbid
conditions”). Yet, while Petitioner had made occasional attempts to quit
smoking, she continued to smoke at least a pack a day through September 2007
and had regularly indicated to her physicians over the past ten years that she was
not interested in, and was not ready to, stop smoking. In fact, at one of her early
visits to MUSC, Petitioner’s doctor reported that, in response to a discussion
about her smoking, Petitioner “state[d] she will likely take her last breath
with a cigarette.” Respt. Ex. #2, at 264.
12. At
the hearing of this case, Petitioner presented additional medical records and
offered testimony suggesting that, after receiving the Retirement Systems’ September 6, 2007 Final Agency Determination denying her disability claim based upon her
non-compliance with her doctors’ advice, she has made another attempt to quit
smoking, which had been successful as of the hearing date. See, e.g.,
Petr. Ex. #7, at 19, 25.
Petitioner’s
Failure to Follow Recommended Exercise Programs
13. In
light of Petitioner’s diabetes, heart disease, and morbid obesity, Petitioner’s
physicians have also routinely advised her to increase her physical activity in
order to improve her health and generally stressed the importance of regular
exercise for managing Petitioner’s medical conditions. Beyond general
recommendations for exercise, Petitioner’s physicians have also provided her
with suggested exercise programs for her to pursue, most commonly recommending
that Petitioner take short walks or perform other light exercise several times
a week. Despite the repeated recommendations of her physicians to increase her
physical activity, Petitioner had not followed any of the exercise programs
suggested by her physicians or participated in any other regular exercise
regimen to any significant extent through September 2007. See, e.g.,
Respt. Ex. #2, at 10 (reporting, as of July 26, 2007, that Petitioner does not follow an exercise regimen), 127 (reporting, in September 2005, that Petitioner
is “essentially sedentary” and gets no exercise), 243 (reporting, on September 24, 1998, that Petitioner “is not physically active”). At the administrative
conference with Ms. Hollenbeck on August 30, 2007, Petitioner admitted that she had “slacked off” on her recommended exercise and was not following an
exercise program or otherwise engaging in physical exercise.
14. At
the hearing of this case, Petitioner presented additional medical records and
offered testimony suggesting that, after receiving the Retirement Systems’ September 6, 2007 Final Agency Determination denying her disability claim based upon her
non-compliance with her doctors’ advice, she has started an exercise program
consisting of daily walks lasting approximately forty-five minutes. See,
e.g., Petr. Ex. #6, at 13; Petr. Ex. #7, at 25.
Petitioner’s
Failure to Follow Recommended Diet
15. In
a similar vein to recommendations for exercise, Petitioner’s physicians have
also repeatedly counseled Petitioner on the importance of improving her diet
for her long-term health. These dietary recommendations were made not only as
a means of addressing her heart disease and obesity, but also as a means of
controlling her diabetes. Accordingly, as part of her medical treatment,
Petitioner has been regularly provided with detailed dietary recommendations to
follow. However, it does not appear that, until recently, Petitioner has
significantly complied with the dietary recommendations made by her treating
physicians. See, e.g., Respt. Ex. #2, at 72 (reporting, on April 18, 2007, that Petitioner “has poor dietary habits and does not exercise”), 146
(noting, in October 2004, that Petitioner “has not bee[n] following a good
diet” and has ignored the advice of a nutritionist), 451 (reporting
Petitioner’s dietary habits as of September 2006). For example, even though
Petitioner had been counseled regarding “the need to avoid intake of all sugar
containing beverages” as a result of her diabetes, see Respt. Ex. #2, at
449, 453, she admitted at the administrative conference with Ms. Hollenbeck to
having recently consumed a milkshake that sent her blood sugar level well above
recommended levels, see Respt. Ex. #4, at 11:44.
16. At
the hearing of this case, Petitioner presented additional medical records and
offered testimony suggesting that, after receiving the Retirement Systems’ September 6, 2007 Final Agency Determination denying her disability claim based upon her
non-compliance with her doctors’ advice, she has become more compliant with her
physicians’ dietary recommendations. See, e.g., Petr. Ex. #2, at 1.
Petitioner’s
Failure to Follow Proper Diabetes Care
17. Although
Petitioner has received regular counseling from MUSC regarding the management
of her diabetes, she has failed to follow proper diabetes care for much of the
past ten years. While Petitioner states that she now checks her blood sugar
level regularly and takes her diabetes medications, including insulin, as
prescribed, her MUSC patient chart reveals that, until recently, Petitioner did
not check her blood sugar level regularly, as recommended, see Respt.
Ex. #2, at 97, 102, 106, 134, 146, 149, 151, 201, 207, 210, 221, 453, and frequently
did not take her diabetes medications as prescribed, often taking only one of
two prescribed daily doses of insulin, see Respt. Ex. #2, at 125, 134,
145, 146, 156, 164-65. In addition to failing to regularly check her blood
sugars and properly take her diabetes medications, Petitioner has, at times,
not complied with other aspects of her diabetes treatment, such as following
the proper diabetic diet or wearing her diabetic footwear. In short,
Petitioner’s medical records demonstrate a routine failure on her part over the
past ten years to comply with the recommended treatment for her diabetes. See,
e.g., Respt. Ex. #2, at 125-27 (noting that Petitioner has not been taking
her morning insulin and had not checked her blood sugars in months and
ultimately describing Petitioner as a “noncompliant p[atien]t with diet,
glucose monitoring or insulin administration”). Not surprisingly, Petitioner
admitted, in a visit on January 23, 2007, that, despite having been diagnosed
with diabetes mellitus for over ten years, she had “not tak[en] her disease
completely seriously until recent months.” Respt. Ex. #2, at 85.
Petitioner’s
Failure to Take Other Medications as Prescribed
18. In
addition to her difficulties with properly taking her diabetes medications,
Petitioner has also frequently failed to take medications for her other medical
conditions as prescribed by her physicians. At various times, Petitioner has
failed to properly take the inhaler medications prescribed for her lung
problems, her thyroid medications, antibiotic medications prescribed to treat a
bout of H. Pylori gastritis, and her blood pressure medications. Consequently,
Petitioner has often been counseled on the importance of taking her medications
as prescribed, see, e.g., Respt. Ex. #2, at 151, 247, 257, and her
patient chart carries a notation that she “rarely uses medications as
prescribed,” see Respt. Ex. #2, at 12, 18.
CONCLUSIONS
OF LAW
Based
upon the foregoing Findings of Fact, I conclude the following as a matter of
law:
Jurisdiction
and General Principles
1. This
Court has jurisdiction over this contested case pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2006), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and S.C. Code Ann. §§
1-23-310 et seq. (2005 & Supp. 2006).
2. The
basic question presented in this matter is whether Petitioner is entitled to
disability retirement benefits from the South Carolina Retirement System as
provided in S.C. Code Ann. § 9-1-1540 (Supp. 2006). 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). As the moving party in this matter, Petitioner bears the
burden of establishing, by a preponderance of the evidence, that she satisfies
the requirements of Section 9-1-1540 and is entitled to the disability retirement
benefits she 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.”). Therefore, in this
matter, Petitioner must establish (1) that she is mentally or physically
incapacitated from the further performance of her job duties as a patient
registration representative with MUSC, (2) that any such incapacity is “likely
to be permanent,” and (3) that the circumstances are such that she “should be
retired.” S.C. Code Ann. § 9-1-1540. In the case at hand, I find that
Petitioner has not met her burden of establishing that she is entitled to
disability retirement benefits under Section 9-1-1540.
Whether
Petitioner “Should be Retired”
3. As
noted above, the statutory criteria for the award of disability retirement
under SCRS require that a disability applicant establish not only that she is
permanently incapacitated from performing her prior job duties, but also that she
“should be retired” as a result of any such claimed incapacity. S.C. Code Ann.
§ 9-1-1540. This broad inquiry essentially requires “an analysis of whether an
award of disability retirement benefits would be proper based on the particular
facts of the case.” Brown v. S.C. Budget & Control Bd., S.C. Retirement
Sys., No. 05-ALJ-30-0217-CC, 2006 WL 2224684, at *5 (S.C. Admin. Law Ct. June 20, 2006). In Brown, the court denied disability retirement benefits to a
member of SCRS, in part because the member could not prove that she “should be
retired” as a result of her allegedly disabling conditions. Id. at *6.
The court found that the member, who alleged disability due to Labile Hypertension
and related strokes, was contributing to and exacerbating her medical
conditions by continuing to smoke cigarettes and consume alcohol, “despite
repeated warnings and instructions from various doctors” to avoid cigarettes
and alcohol. Id. Because it was clear to the court that the member’s
“own personal habits and behaviors were a factor in her hypertension,” the
court ultimately concluded that “it would be imprudent to pay disability
retirement benefits under the circumstances in this case” and denied the
member’s disability claim. Id.
4. It
has also been recognized under the “should be retired” standard 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, 2004 WL 3200372, at *11 (S.C. Admin.
Law Judge Div. 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.
5. In
the case at hand, it would be similarly imprudent to award disability
retirement benefits to Petitioner based upon the circumstances of her case.
There is no question that Petitioner suffers from several, serious medical
conditions, including diabetes, COPD, and coronary artery disease, all of which
she has been diagnosed with for over ten years. However, it is equally
apparent that Petitioner’s own personal habits and behaviors, including her
cigarette smoking, poor dietary habits, lack of exercise, and general failure
to comply with the prescribed treatments for her medical conditions, have
significantly contributed to and exacerbated her medical conditions. Despite
repeated, specific counseling from her physicians at MUSC over the past ten
years on the steps she should take to improve her serious diabetic, lung, and
heart conditions, Petitioner continued, until very recently, to smoke a pack of
cigarettes a day, eat an unhealthy diet, and refrain from any physical
exercise. Further, while Petitioner now reports that she is taking the
treatments for her diabetes seriously, her medical records reveal that, for
much of the past decade, she did not take her condition seriously and did not
fully comply with the prescribed treatments for the disease, often missing
doses of insulin and failing to check her blood sugar regularly. Petitioner’s lack
of concern regarding her health is further reflected in her general failure to
take medications as prescribed for conditions ranging from her chronic lung
problems to her thyroid condition. Therefore, while this Court acknowledges
that Petitioner does have several serious medical problems and commends
Petitioner on the recent lifestyle changes she has made in response to the
Retirement Systems’ denial of her disability claim, it cannot ignore the fact
that any impact her medical conditions have had upon her ability to work is
largely the product of her long-standing failure to comply with the treatments
prescribed by her physicians for her conditions. Accordingly, this Court
cannot find that Petitioner “should be retired” on a disability allowance
pursuant to Section 9-1-1540.
6. Further,
it should be noted that, while Petitioner has not demonstrated that she “should
be retired” as a result of her medical conditions, she has also failed to meet
her burden of establishing that she is, in fact, permanently incapacitated from
the further performance of her prior, largely sedentary job duties at MUSC as a
result of her medical conditions. Undoubtedly, Petitioner’s health is
certainly compromised by her diabetes, COPD, and heart disease, all of which
have serious implications for her long-term wellbeing. However, the clinical
reports contained in her medical records do not suggest that Petitioner has
suffered complications from her diabetes of such severity that she is
permanently incapacitated from performing her prior job at MUSC, nor do her
medical records suggest that her underlying COPD and coronary heart disease
prevent her from performing her prior job duties on a daily basis, except,
perhaps, during the occasional acute exacerbation of her COPD. Moreover, while
Petitioner’s current treating physician, Dr. Maria Gibson, has written two
letters in support of her disability claim, these letters only generally
describe Petitioner’s medical conditions and do not state how or why those
conditions would impair Petitioner’s ability to perform her prior job duties
with MUSC, much less state that any such impairments are likely to be permanent
and are not subject to improvement. See Respt. Ex. #2, at 35; Petr. Ex.
#2. Accordingly, Dr. Gibson’s letters are only of limited usefulness in
evaluating Petitioner’s disability claim under the standard set out in Section 9-1-1540.
Conclusion
7. For
the reasons set forth above, I find that Petitioner has not met her burden of
demonstrating that she satisfies the requirements for the award of disability
retirement benefits, and, in particular, she has not established that she “should
be retired,” given her record of noncompliance with the advice of her
physicians. Therefore, I find that Petitioner’s application for disability
retirement benefits pursuant to Section 9-1-1540 was properly denied by the Retirement Systems.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above,
IT
IS HEREBY ORDERED that the Retirement Systems’ September 6, 2007 Final Agency Determination denying Petitioner’s application for disability retirement
benefits is SUSTAINED.
AND
IT IS SO ORDERED.
_____________________________
The
Honorable John D. McLeod
Administrative
Law Judge
December 4, 2007
Columbia, South Carolina
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