ORDERS:
ORDER
STATEMENT OF THE CASE
The above-captioned
matter is before the Administrative Law Court (“ALC” or “Court”) pursuant to
S.C. Code Ann. §§ 1-11-710(C) (2005) and 1-23-600(D) and (E) (as amended 2008)
for an administrative appeal. Appellant
Carol O. Lucas, Jr. (“Lucas”) seeks review of a decision (the “Decision”) by
Respondent, the South Carolina Budget and Control Board, Employee Insurance
Program (“EIP”), denying his claim for long-term disability benefits (“LTD
benefits”) under the State of South Carolina’s Long Term Disability Income
Benefit Plan (the “Plan”). In its letter dated April 23, 2007, EIP’s Long Term
Disability Appeals Committee (“Appeals Committee”) notified Lucas that his
medical conditions did not qualify him for LTD benefits under the terms and
conditions of the Plan.
In
his appeal, Lucas challenges the Decision, asserting that he is unable to
perform his former job as an accountant for the Department of Obstetrics and
Gynecology of the University of South Carolina School of Medicine
(“Department”), from which he retired on February 24, 2006. More specifically,
he argues that the evidence in the record demonstrates that his neuropathic pain
and cognitive limitations prevent him from performing his job. Further, he
argues that the Decision was arbitrary and capricious because EIP gave more
credibility to the opinions of two independent physician consultants it hired
to review his medical file, Dr. Green and Dr. Beeson, than to those of his
treating physicians.
In
response, EIP argues that the substantial evidence in the record, including the
records of Lucas’ treating physicians and the opinions of Drs. Green and
Beeson, demonstrate that Lucas’ medical conditions – alone or in combination –
do not prevent him from performing the material duties of his occupation as an
accountant. Further, EIP asserts that § 1-11-710(C) and the Plan give it the
discretion to give more credibility to the opinions of the two doctors they
hired to conduct a review of Lucas’ medical records if the evidence in the
record supports their conclusions.
After
timely notice to the parties, oral arguments in this matter were held on
February 11, 2008 at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence contained in the record, the parties’
briefs, their oral arguments, and the applicable law, the Court reverses the
Decision, finding that Lucas is disabled from performing his occupation as an
accountant and that he must immediately be provided those disability income
benefits as allowed by the Plan.
BACKGROUND
Procedural Background
Lucas began employment in
March 1997 as an accountant with the Department. At the suggestion of his
supervisor, David Bell, he voluntarily resigned from his position with the
Department on February 24, 2006. He has not worked since that date. As part
of his job duties, he was responsible for the Department’s payroll, its bank
reconciliation, and for preparing its monthly and year end reports. Also, his
duties required the lifting of banker boxes and accounts payable ledgers. The
full listing of his duties is defined by the Department under “Position
Description.” (R. at 201).
As a result of the
difficulties in performing his job duties (resulting from pain in his hands,
arms, feet and legs, as well as the loss of cognitive abilities), Lucas applied
for LTD Benefits. He alleged an inability to work due to extreme fatigue,
reduced mental clarity, diabetic nerve pain, and cognitive difficulties.
Lucas has been diagnosed and is being treated for numerous
medical problems, including diabetes, hypertension, coronary artery disease –
which has required two heart stents – neuropathic pain, diabetic retinopathy,
residual weakness, sleep apnea, restless leg syndrome, cognitive impairment,
vision impairment, chronic pain and medication side effects. He asserts that
these medical conditions, combined with the existence of previous multiple
strokes (brainstem strokes in 2001 which left him with residual symptoms in his
upper and lower extremities), prevent him from returning to his occupation or
any other job in the national economy. His primary treating physician, Dr.
Craig Maylath, has concluded that he is unable to return to his occupation as
an accountant due to his medical conditions.
On June 15, 2006, Standard
Insurance Company (“Standard”), the third-party claims administrator for the
Plan located in Portland, Oregon, informed Lucas that his claim for LTD
benefits had been denied, asserting that his medical conditions did not prevent
him from performing his job, or his “Own Occupation,” as defined by the Plan.
Specifically, Standard found that “there is insufficient medical documentation
in [his] claim file to support that [his] conditions individually and/or
collectively were of such a severity when [he] ceased work and beyond to
prevent [him] from performing [his] Own Occupation.” (R. at 154). This
decision was based in part on the opinions of two medical doctors, Dr. Green
and Dr. Beeson, both from an Oregon family medical practice, who Standard hired
to review Lucas’ medical records. They opined that his conditions would not
prevent him from working in his own occupation.
Thereafter, on June 27, 2006,
Lucas requested a review of Standard’s decision to deny his LTD benefits claim,
and on September 25, 2006, Standard notified him of its decision to affirm the denial
of his claim. Notably, on September 13, 2006, Peggy G. Boykin, Director of the
South Carolina Budget and Control Board, Division of South Carolina Retirement
Systems (“Retirement Systems”), adopted the recommendation of a vocational consultant, Leanna Hollenbeck, MS, CRC, CCM, CLCP, who it had retained to act as its conference reviewing officer. Ms.
Hollenbeck recommended that Lucas be awarded disability retirement benefits
based upon his inability to perform his job duties as an accountant with the
Department. In adopting her recommendation, the Retirement Systems found that Lucas,
based upon his medical records and difficulties in performing his job as
reported in writing by his supervisor, David Bell, had physical impairments
that functionally prevented him from performing the regular duties of his job.
Further, the determination noted that Lucas was receiving long-term disability
benefits.
In its September 25,
2006 denial letter, Standard also informed Lucas that it would be forwarding
its file to the Administrative Review Unit for an objective review of its
decision to deny his claim. Subsequently, by letter dated October 24, 2006,
the Administrative Review Unit notified Lucas that it affirmed the earlier
decision to deny his claim. Lucas appealed Standard’s final decision to the
Appeals Committee. On
April 23, 2007, the Appeals Committee issued the Decision, based upon Lucas’
medical records as submitted, the relevant provisions of the Plan, and the medical
opinions of Standard’s Physician Consultants. It concluded that the “facts and
circumstances of [Lucas’] claim do not qualify [him] for disability income
benefits under the [basic] LTD Plan.” On May 9, 2007, Lucas filed a Notice of
Appeal with this Court to challenge EIP’s Decision.
Factual Background and Medical History
I. Lucas’
Treating Physicians
A. Dr.
Eric Horst
Dr. Horst is an
endocrinologist with Laurel Endocrine Associates in Columbia, South Carolina.
Lucas has had diabetes for
more than 30 years (since 1974), and Dr. Horst has treated him for this
condition since September 2000. He treated Lucas on five visits in 2003, seven
visits in 2004, and six visits in 2005. In January 2006 he recommended that
Lucas stop working because of the progressively debilitating effects of
diabetes and multiple co-morbidities.
On September 1, 2005, Dr.
Horst noted that Lucas had experienced daily hypoglycemic episodes and directed him to continue his insulin dosage and to follow-up in
3-4 months. Dr. Horst saw Lucas again on April 5, 2006 as a follow-up on his
diabetes problem. Dr. Horst noted that Lucas was “doing fair” and that “[h]e
is now medically retired because of [an] inability to do his normal work for
many reasons including his neuropathy which is both diabetic and stroke related,
some generalized weakness worse on the right side, and visual disturbance also
related to [a] prior [stroke].” (R. at 296). Dr. Horst also noted that
Lucas had started an exercise program and advised Lucas about controlling his
blood sugar when he exercised. In his report, Dr. Horst stated that Lucas was
limited by “very poor memory and difficulty completing tasks . . . chronic
pain, [and] poor concentration.” (R. at 293).
B. Dr. Craig F. Maylath
Dr. Maylath, is the
primary care physician for Lucas. During his March 17, 2005 office visit with
Lucas, Dr. Maylath noted that Lucas’ diabetes was uncontrolled, and that Lucas
was experiencing neuropathic pain in his extremities due to diabetes. During a
visit with Lucas on February 10, 2005, Dr. Maylath again stated that Lucas’
diabetes was uncontrolled. Further, he noted that Lucas had multiple end-organ
complications, residual weakness, and neuropathic pain in his right upper and
lower extremities, with elevated cholesterol and hypertension. Lucas reported decreased
exercise tolerance, decreased energy and occasional jaw pain. He suggested
that Lucas follow up with Dr. Horst (endocrinologist) and Dr. Schulze (cardiologist)
as soon as possible. He was continued on his medications.
In subsequent
appointments with Dr. Maylath, Lucas complained of the same medical problems.
The record states that Lucas also suffered from obstructive sleep apnea and
restless leg syndrome, and that he was following up with Dr. Derderian, a
pulmonologist, who had prescribed Lucas a CPAP unit (continuous positive air
pressure) and medication.
On July 14, 2005, Lucas visited with Dr. Maylath again, reporting that he had
been diagnosed with a malignant tumor in his bladder, that he had undergone surgery
in which the cancer had been completely excised, and that he was pretty much
back to normal from a urinary standpoint. Again, Dr. Maylath reported that Lucas’
diabetes was uncontrolled, his cholesterol was elevated, and that he was
continuing to be seen by Drs. Schultze and Horst.
On January 5, 2006,
Lucas reported to Dr. Maylath that his neuropathic pain rated 7-8 on a scale of
10 approximately one-half of the days in a given month; other days, the pain
level ranged from 2-6. They discussed whether Lucas would be seeking
disability compensation: Lucas told Dr. Maylath that he wanted to “put in a
full 10 years of service as a state employee which would put him into next
year” and that he wanted to remain at work at least that long. (R. at 340).
His primary complaints remained the same. Dr. Maylath next saw Lucas on March
23, 2006, one month after Lucas voluntarily stopped working. Dr. Maylath noted
that Lucas “has retired from his work . . . due to chronic disability.” (R. at
338). Dr. Maylath further noted that Lucas had joined the YMCA “with hopes of
embarking upon a regular exercise program.” Id. Dr. Maylath’s chart
reflected that Lucas had the same medical history: his diabetes was
uncontrolled, and he had chronic pain with neuropathy, retinopathy and
peripheral vascular disease, all related to his diabetes as well as to his prior
stroke.
In Dr. Maylath’s April
24, 2006 Attending Physician’s Statement (“APS”) submitted to Standard, he set
forth Lucas’ primary diagnosis of diabetes, with a secondary diagnosis of coronary
artery disease, chronic unremitting pain in his extremities, cerebrovascular
disease, peripheral neuropathy, and visual impairment. He noted that he
recommended to Lucas that he stop working in January 2006 due to his medical
problems. In the report, he further noted that Lucas was prescribed numerous
mediations: Insulin, Toprol, Plavix, Lortab. Elivil, Lipitor, Zoloft, Benicar,
Ativan, Lyrica, Requip, and Sinemet. (R.
at 336).
On June 15, 2006, Lucas
visited with Dr. Maylath again. Dr. Maylath reported that Lucas was trying to
stay active but had problems adjusting his insulin to accommodate his exercise
schedule. He noted that Lucas’ chronic pain issues had remained unchanged and
that he continues to be treated by endocrinology, cardiology, urology and
pulmonary specialists. Also, he noted that Lucas’ history included bladder
carcinoma in situ as well as obstructive sleep apnea for which he uses a
CPAP unit. Dr. Maylath stated that Lucas had concerns relating to his heart,
and that he would defer to Dr. Schulze at the Columbia Heart Clinic for ongoing
management. His plan also included having Lucas continue seeing Dr. Horst for
his diabetic regimen. He noted that Lucas’ hypertension was elevated, and he
was on an aggressive medication regimen.
C. Dr. Robert A. Schulze, Jr.
Dr. Schulze is Lucas’ cardiologist.
Lucas underwent surgery to insert a stent in his right coronary artery in
August 2004. On July 6, 2006, Lucas saw Dr. Schulze for a cardiac evaluation.
Dr. Schulze noted that Lucas came in early for an appointment (was due for an
August 2006 appointment) due to “some recent chest pain,” together with some
jaw discomfort. He noted that Lucas was “apparently being medically retired
from his job because he has not been able to keep up his physical activity.” (R.
at 258). Lucas was given a stress test, but the test was terminated due to
fatigue as well as maximum effort exerted by Lucas; therefore, the test results
were diagnosed as abnormal. Dr. Schulze was “concerned about progressive
coronary artery disease in this diabetic man” and recommended that Lucas have a
coronary CT evaluation to see if he needed to be considered for repeat percutaneous
coronary intervention. (R. at 258). On July 10, 2006, Lucas underwent the
cardiovascular CT scan which revealed abnormal results.
On May 10, 2006, Dr.
Schultze completed an APS for Standard. He described Lucas’ conditions as
“retrogress[ing]” and noted that his conditions would “never” change. (R. at 329).
D. Dr. David B. Fulton
Dr. Fulton is a specialist
in hand surgery with the Moore Orthopedic Clinic in Columbia, South Carolina.
Lucas originally began treatment with Dr. Herbert T. Niestat of the Moore
Orthopedic Clinic in October 1998 as a result of an accident he suffered on
September 17, 1998 while employed with the Department. He developed pain in
his left hand and wrist and was diagnosed with acute tenosynovitis, or De
Quervain’s disease, to his left wrist. He was given a splint for his thumb.
On a return visit on September 19, 1998, he complained of pain in his left
shoulder and received injectable medications.
He continued to be
treated by Dr. Niestat until May 29, 2002, when he began treatment with Dr.
Fulton. He was treated for bilateral hand pain and numbness in his right hand,
reporting an onset from approximately 1998, but getting worse after a stroke,
and for treatment of symptoms of numbness and pain in the left hand. He stated
that the pain was rated as 10 out of 10 in severity. Dr. Fulton reviewed nerve
conduction studies which showed a moderately severe right carpal tunnel
syndrome and left mild carpal tunnel syndrome. On June 11, 2002, Dr. Fulton
performed right carpal tunnel release and injected Lucas’ left thumb. Lucas’
pain and problems with his right wrist and left thumb seemed to improve until
October 1, 2002, when Lucas told Dr. Fulton that he had redeveloped significant
triggering and pain in his left thumb, had morning stiffness in the left hand
with intermittent paresthesia, and
had trouble sleeping. Dr. Fulton recommended carpal tunnel release and
trigger thumb release, which he performed again on October 23, 2002. On
November 11, 2004, Lucas visited with Dr. Fulton, complaining of pain in his
right wrist with swelling and difficulty in lifting. Lucas was injected in the
right wrist with two medications and continued with the medication. Lucas
continued with his visits with Dr. Fulton in 2004 and 2005, complaining of
increasing pain in his right hand and right arm and painful triggering in his
left index, long and ring finger (the latter resulting from overuse or
trauma). He received injections versus undergoing any further surgery due to
diabetic complications.
In a November 17, 2006
letter, Dr. Fulton stated that Lucas “is a longstanding patient” and that he
has treated him “for multiple problems, including trigger digits, de Quervain’s
tendinitis, carpal tunnel syndrome, and paronychia of the great toe.” (R. at 54). He alluded that many of these conditions were
related to Lucas’ diabetes and noted that Lucas had been treated for a possible
neuropathy in his right arm. He opined that his “upper extremities had been
adversely affected by his brittle diabetes” and stated that “it would be more
challenging for him to complete task[s] with his upper extremities [than] it
would [be] for someone without these conditions.” Id. Dr. Fulton stated
that Lucas had a good attitude and had been an “excellent patient” during his
interaction with him. Id.
E. Dr. William A. Johnson
Dr. William A. Johnson
is an ophthalmologist with the Columbia Eye Clinic in Columbia, South Carolina. He states in a letter dated July 17, 2006 that Lucas has been a patient of
his for many years and that he has been followed with a background of diabetic
retinopathy. He notes that Lucas has difficulty with his left cornea due to a
stroke suffered in 2001 and was left with nerve palsy in his left eye. As a
result, he notes that Lucas has some blurring and visual difficulty in his left
eye resulting from the stroke.
F. Dr.
Sarkis S. Derderian
Dr. Derderian is a
pulmonologist who has treated Lucas for sleep apnea since June 1997. In his
report dated March 1, 2006, he notes that Lucas is using his CPAP unit and is
prescribed medication. During the visit, he changed Lucas’ medication and
advised him to continue using the CPAP unit.
II. Standard’s
Physician Consultants, Dr. Green and Dr. Beeson
As part of its review
of Lucas’ claim for benefits, Standard hired two board-certified internists,
Dr. Janette Green and Dr. Steven C. Beeson, to provide independent medical
opinions. Dr. Beeson was retained as a medical consultant by Standard in
2000. Both Dr. Beeson and Dr. Green are partners in Cedar Creek Internal
Medicine at Portland, Oregon (since September 1, 2000). Standard requested
that they review all of Lucas’ medical records and opine as to whether his
conditions precluded him from working in his occupation as an accountant.
In her initial
Consultant Memo dated June 2, 2006, Dr. Green noted that Lucas’ primary
complaint was neuropathic pain, but that there is no indication that there was
any significant change in the neuropathy or his diabetes around the time Lucas
stopped working. Dr. Green pointed out that Lucas did not exhibit significant
weakness as a result of a stroke and that his coronary artery disease was
stable. Dr. Green acknowledged that Lucas experienced fatigue, but opined that
“documentation in regards to ‘fatigue’ is not sufficient to support fatigue of
a severity that is giving limitations and restrictions to [Lucas’] activity or
function.” Id.
Finally, Dr. Green
noted “[t]here is occasional reference to [Lucas] having ‘cognitive problems.’”
(R. at 305). Dr. Green concluded that the records did not support any change
in Lucas’ chronic medical condition that would lead to limitations or
restrictions precluding him from a sedentary level occupation, especially one
that he has previously shown the ability to perform. In a subsequent opinion
dated September 6, 2006 (after being furnished the June 2006 report of Dr.
Maylath), Dr. Green concluded that while “it is reasonable that he would be
precluded from medium level occupations and above,” the documentation did not
support limitations or restrictions based on his diabetes, peripheral
neuropathy, chronic pain, coronary artery disease, history of [stroke] or retinopathy
– either alone or in combination – that would have precluded him from performing
a sedentary level occupation. (R. at 237).
STANDARD
OF REVIEW
This Court’s appellate
review of final decisions of the Department is governed by the standards provided
in S.C. Code Ann. § 1-23-380 (as amended 2008). See S.C. Code Ann. §
1-23-600(E) (as amended 2008). Section 1-23-380 provides that this Court “may
not substitute its judgment for the judgment of the [Respondent] as to the
weight of the evidence on questions of fact.” § 1-23-380(5). However, this
Court, pursuant to § 1-23-380(5),
may
reverse or modify the decision if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences, conclusions or
decisions are:
(a)
in violation of constitutional or statutory provisions;
(b)
in excess of the statutory authority of the [Respondent];
(c)
made upon unlawful procedure;
(d)
affected by other error of law;
(e)
clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or
(f)
arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
Id.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981) (stating
“‘[s]ubstantial evidence’ is not a mere scintilla of evidence nor the evidence
viewed blindly from one side of the case, but is evidence which, considering
the Record as a whole, would allow reasonable minds to reach the conclusion
that the administrative agency reached or must have reached in order to justify
its action.” Id. at 135, 276 S.E.2d at 306. “The
findings of the agency are presumed correct and will be set aside only if
unsupported by substantial evidence.” Hull v. Spartanburg County Assessor,
372 S.C. 420, 424, 341 S.E.2d 909, 911 (Ct. App. 2007) (citing Kearse v.
State Health and Human Servs. Fin. Comm'n, 318 S.C. 198, 200, 456
S.E.2d 892, 893 (1995). Accordingly, “[t]he ‘possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence.’” Grant v.
S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995) (citing Palmetto
Alliance, Inc. v. S.C. Pub. Serv. Comm., 282 S.C. 430, 432, 319 S.E.2d 695,
696 (1984)).
Further, an
abuse of discretion occurs when an administrative agency’s ruling is based upon
an error of law, such as application of the wrong legal principle; or, when
based upon factual conclusions, the ruling is without evidentiary support; or,
when the trial court is vested with discretion, but the ruling reveals no
discretion was exercised; or, when the ruling does not fall within the range of
permissible decisions applicable in a particular case, such that it may be
deemed arbitrary and capricious. State v. Allen, 370
S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit
court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566
(1987); see also Converse
Power Corp, 350 S.C. 39, 47 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese
v. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct.
App. 1985) (“A decision is arbitrary if it is without a rational basis, is
based alone on one's will and not upon any course of reasoning and exercise of
judgment, is made at pleasure, without adequate determining principles, or is
governed by no fixed rules or standards.”). DISCUSSION
Lucas contends that
EIP’s Decision was clearly erroneous in view of the whole record, was arbitrary
and capricious, and was an abuse of discretion: (1) EIP ignored the medical
records, medical findings, and statements of Lucas’ physicians; (2) EIP gave
greater weight and credence to the opinions of Standard’s Physician Consultants
– whom have never examined, treated, or diagnosed Lucas – over the medical
records and opinions of his three treating physicians; and, (3) EIP ignored the
statements of Lucas’ supervisor, David Bell, and evidence of Lucas’ inability
to perform with reasonable continuity the material duties of his occupation.
Disability Definition under the LTD Plan
The
Plan includes the following relevant provisions:
A. Own
Occupation Definition of Disability
During the
Benefit Waiting Period and the Own Occupation Period you are required to be
Disabled only from your Own Occupation.
You are Disabled
from your Own Occupation if, as a result of Physical Disease, Injury, Pregnancy
or Mental Disorder, you are unable to perform with reasonable continuity the
Material Duties of your Own Occupation.
Own Occupation
means any employment, business, trade, profession, calling or vocation that
involves Material Duties of the same general character as your regular and
ordinary employment with the Employer. Your Own Occupation is not limited to
your job with your Employer.
B. Proof
of Loss
Proof of Loss
means written proof that you are Disabled and entitled to LTD Benefits. Proof
of Loss must be provided at your expense.
For claims of
Disability due to conditions other than Mental Disorders, we may require proof
of physical impairment that results from anatomical or physiological
abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.
(R.
at 8).
Treating Physician Rule
This
case involves a question regarding the weight of medical expert testimony in
Employee Insurance Program cases. Lucas argues that EIP should have given
greater deference to the opinions of his treating physicians than to the opinions
of the non-treating physicians it relied upon. EIP asserts that its decision
should be affirmed under the applicable statutory authority and standard of
review.
Under the “treating
physician rule,” the opinion of the physician treating the patient is entitled
to greater deference because of that physician’s firsthand knowledge of the
patient’s specific injury; in other words, a court can afford special weight to
the opinion of a claimant’s treating physician. See, e.g., Mitchell
v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983). However, whether the
treating physician rule should be applied can depend on the context of the case. For example, the treating physician rule is applied in determining
whether a claimant is entitled to federal social security disability benefits. By contrast, the
United States Supreme Court has held that the treating physician
rule does not apply in ERISA cases. Black &
Decker Disability Plan v. Nord, 538 U.S. 822,
834 (2003) (“[C]ourts have no warrant to require administrators
automatically to accord special weight to the opinions of a claimant’s physician;
nor may courts impose on plan administrators a discrete burden of explanation
when they credit reliable evidence that conflicts with a treating
physician’s evaluation.”)
(emphasis added).
Although South Carolina has not expressly addressed whether the treating physician rule should be
applied in EIP cases, case law suggests that it may be appropriate in some
cases to accord greater weight to the opinions of treating physicians. In James
v. S.C. Employee Insurance Program, 371
S.C. 637, 640 S.E.2d 474 (Ct. App. 2006), the South Carolina
Court of Appeals upheld the circuit court’s
determination that EIP erred in denying coverage to a claimant for a medical
device. In its opinion, the Court of Appeals emphasized the fact
that “the only physician who personally examined and treated the
[patient] stated unequivocally that the treatment was medically necessary.” James, 371 S.C. at 646, 640 S.E.2d at 479.
More recently, by
contrast, the Court of Appeals implicitly gave no particular deference to the
treating physicians of a claimant seeking long-term disability benefits in Wilson
v. State Budget and Control Board Employee Insurance Program, 374 S.C. 300, 648 S.E.2d 310 (Ct. App. 2007). In Wilson, the
Court of Appeals found that EIP’s determination was supported by substantial
evidence; however, the decision in Wilson seems to be primarily based
upon the opinion of an independent expert retained at the circuit court’s request
who personally examined Wilson.
Reading Wilson and James together, it is apparent that South Carolina has not adopted a rule of per
se deference to the opinions of treating physicians; rather, the amount of
deference that should be given to a treating physician’s opinion depends on
the evidence and issue presented in a particular case. Accordingly,
whether to accord more weight to the opinions of treating physicians than to
that of some other medical expert must be determined on a case-by-case basis.
On appeal, the ALC must review EIP’s determination regarding the medical
experts within the parameters of § 1-23-380(5) requiring the evidence, viewed
in light of the record as a whole, to be reliable, probative, and substantial.
Evidence
Lucas was diagnosed
with and has received treatment for diabetes for over thirty years. The physical
effects and problems of his diabetes have increased as Lucas has aged. His
primary treating physician, Dr. Maylath, has concluded that his problems
including chronic pain, generalized weakness, decreased energy, memory loss,
fatigue, and hypoglycemic episodes render Lucas unable to work. None of his
other treating doctors disagree with Dr. Maylath’s opinion. Dr. Maylath spoke
about the increased neuropathic pain in his right upper and lower extremities,
fatigue, and residual weakness of Lucas twelve months before he applied for
disability. In March 2005, the neuropathic pain had increased so much that Dr.
Maylath prescribed neurontin for Lucas. In a March 2006 visit, Dr. Maylath and
Lucas spent the “bulk” of their meeting discussing narcotic medications and
potential abuse, which speaks to his increased problems with pain control. (R.
at 338). Further, decreased energy and exercise intolerance was noted over a
year before he applied for benefits. Within a month of Lucas retiring, Dr.
Maylath stated that Lucas’ diabetes was poorly controlled, complicated by
neuropathy, retinopathy, and peripheral vascular disease and his chronic pain
was mostly neuropathic related to his diabetes as well as his prior stroke. Six
weeks after Lucas retired, Dr. Horst stated that Lucas’ diabetes was only
marginally controlled and that Lucas experienced peripheral neuropathy,
hyperlipidemia, and
cerebrovascular disease. Further, Dr. Horst stated that Lucas was medically
retired because of his inability to do the normal duties required for his
position with the Department. As of June 15, 2006, Dr. Maylath noted Lucas was
having recurrent insulin reactions and that his chronic pain issues remained
unchanged. In July 2006, Dr. Schultze halted Lucas’ stress test before completion
due to fatigue.
Dr. Horst, Dr. Maylath
and Dr. Schultze submitted APSs, individually, to Standard in which Standard
required that they review Lucas’ medical records, analyze his symptoms, conduct
various tests, and list his current restrictions. These statements from Lucas’
treating physicians clearly place him below the sedentary work level.
In his April 5, 2006 APS,
Dr. Horst initially limited Lucas to walking/standing for one hour in an eight-hour
day, two hours of sitting in an eight-hour day, no bending or stooping, and no
right-handed fine manipulation. In Dr. Horst’s second APS, submitted on July
22, 2006, he placed additional restrictions on Lucas including zero hours
walking and standing in an eight-hour day, and two hours sitting in an eight-hour
day. Dr. Horst stated that Lucas would never return to work full-time, and his
condition would never change. Dr. Maylath’s report submitted to Standard placed
multiple restrictions on Lucas, including no frequent lifting, maximum lifting
of ten pounds, walking/standing zero hours in an eight-hour day, two hours
sitting in an eight-hour day, no bending, stooping, or reaching. Dr. Maylath
also concluded that Lucas would never return to work full time, his condition
had retrogressed since onset and would never change, and that no job-site
modifications could be made to assist in his return. Dr. Schultze’s APS to
Standard stated that Lucas had a maximum lifting capacity of ten pounds,
walking/standing zero hours in an eight-hour day, and noted his reported memory
problems. Dr. Schulze determined that Lucas’ condition would never change, he
would never return to work, and that no job-site modifications could be made by
his employer to allow him to return to work.
All three of Lucas’ treating
doctors clearly indicate that his pain is chronic and varies greatly, and his
diabetes is progressively debilitating and remains uncontrolled despite often
changing the medications prescribed. Lucas’ neuropathic pain is a key factor
in his claim for disability, and his physicians have documented his chronic
pain and the effects of such pain in the medical records and specifically the APSs
submitted. This is the best evidence submitted for an adjudicator to weigh the
effects of Lucas’ pain and the limitations that result.
EIP failed to consider the debilitating effects of his pain as set forth in his
records when addressing his ability to perform sedentary work. The reports
filed with Standard by Lucas’ treating physicians address the physical
limitations of sitting, walking, and standing based on the medical records and
conversations with Lucas regarding his daily activities.
Under the facts of this
case, the Court finds that EIP erred by according greater credibility to the
opinions of the non-examining physicians than to those of Lucas’ treating
physicians. Neither Dr. Beeson nor Dr. Green are trained or certified as
pulmonologists, cardiologists, endocrinologists, or hand surgeons. They are
internal medicine doctors hired to read the medical records and give opinions
based upon the in camera treatment provided to Lucas by his treating
physicians. Dr. Beeson and Dr. Green never physically viewed, treated,
examined, or prescribed treatment for Lucas. Oddly, Dr. Beeson and Dr. Green
work together at the same family practice in Oregon. The Court finds, in
reviewing their reports and the entire record, that such a close relationship
taints their credibility. For instance, both doctors found that Lucas is able
to return to his employment and their opinions are quite similar to each other.
Dr. Green does not believe the medical documentation supports “any change in
the claimant’s chronic medical condition that would lead to limitations or
restrictions precluding him from a sedentary level occupation.” (R. at 309).
Dr. Beeson stated he “could find nothing in the medical record that would
warrant or justify limitations and restrictions to a sedentary occupation” and “there
is no evidence that the patient’s symptoms in any way changed or worsened at or
about the time he ceased work.” (R. at 223).
Dr. Green and Dr.
Beeson ignored many of the objective findings in Lucas’ medical records and
most notably the four APSs completed by three different treating physicians. As
previously mentioned, Lucas’ medical records are very detailed regarding his
neuropathic pain complaints, uncontrolled diabetes, and physical and mental
restrictions. Neither Dr. Green nor Dr. Beeson submitted any medical
documentation, test results, interviews with Lucas or his fellow co-workers, or
any other information to support their opinions that he could return to his
occupation. They did not discuss the requirements of sedentary work. To the
contrary, the medical reports of the treating physicians list Lucas’ physical
abilities and restrictions and, when these findings are applied to the
definition of sedentary work to determine if he can return to his employment,
it is clear that Lucas cannot perform sedentary work. Furthermore, the report
and conclusion submitted by the vocational expert and adopted by the Retirement
Systems is unchallenged: Lucas is unable to perform the material tasks of his
job with reasonable continuity, which finding is supported by the overwhelming
evidence in the record.
In her second Consultant
Memo, Dr. Green states that Lucas cannot perform medium work or above due to
diabetes, peripheral neuropathy, coronary artery disease, and hypoglycemic
events, but that he can return to sedentary work. However, she does not state
which of Lucas’ numerous physical and mental impairments she finds compelling
to now restrict his physical exertion level to medium; and she does not define
sedentary work or how Lucas, with his complaints and history, can qualify for
such. Dr. Beeson offers as support for his ultimate finding for denial of
benefits that “it does not appear that the patient was even seen on or around
the time that he ceased work in February of 2006.” (R. at 223). He ignores
the fact that Lucas saw Dr. Maylath on January 5, 2006 and on March 23, 2006,
as well as Dr. Horst on April 5, 2006.
Further, Dr. Beeson
stated that he believed Lucas had limitations but “do[es] not believe he can
work at anything greater than sedentary or perhaps light work occupation.” (R.
at 230). Also, he states that Lucas’ coronary artery disease was noted to be
stable. However, he does not comment on Lucas’ complaints about pain in his
jaw, of documented stenosis in his right artery, or of Lucas’ inability to
complete a stress test. He ignores the functional capacity grades the treating
physicians gave to Lucas, especially those limitations of the cardiologist.
Also, he ignored Dr. Horst’s statement that Lucas had very poor memory,
difficulty completing tasks, poor concentration, and right-sided weakness when
he states that “there is very little evidence, if any, in the medical record
provided” of any cognitive disability. (R. at 223 and 293). He ignores the
history of two stent implants. In fact, he ignores all these objective and
subjective findings, concluding that Lucas can perform sedentary work. Much
like Dr. Green, he fails to explain his findings or offer any medical
documentation regarding Lucas’ restrictions.
The Courts stresses
that this is not a typical “battle of the experts” case. Cf. Wilson, 374 S.C. at 305, 648 S.E.2d at 313 (affirming EIP’s
denial of coverage where opinions of multiple examining physicians conflicted
and medical records were inconsistent). Lucas’ treating doctors, who
personally examined and treated him over a lengthy period of time, were in a
better position to state whether he was unable to continue working and to
document his pain, physical and mental restrictions, objective and subjective
complaints, and to actually witness the deterioration occurring from his diabetes.
All of the examining physicians agreed about the debilitating effects of his
many medical problems and generally agreed to his physical capacity
limitations. Drs. Green and Beeson never examined Lucas and did not have the same
opportunity as the treating physicians to ascertain if he suffered debilitating
effects from his diabetes. Further, all three of Lucas’ treating physicians
documented his physical and mental restrictions in their APSs and medical
records. Dr. Green’s and Dr. Beeson’s analysis and reports are incomplete,
fail to take into account all of the medical evidence submitted, and are not
the best evidence to determine disability. EIP agreed with the diagnosis of Lucas’
treating doctors concerning his diabetic problem, neuropathic pain,
hypertension, coronary artery disease, residual weakness, and fatigue; however,
it refused to agree with the extent or degree of his disabilities or
limitations as delineated in the medical records. EIP erred in giving too much
weight to the opinions of Dr. Green and Dr. Beeson, while unjustifiably
discounting the opinions of Lucas’ treating physicians.
CONCLUSION
Viewing the record as a
whole, reasonable minds can only conclude that Lucas’ conditions prevent him
from being able to perform with reasonable continuity the material duties of
his occupation as an accountant. The cursory conclusions by EIP and its
adoption of inaccurate assumptions by Drs. Beeson and Green cannot constitute
substantial evidence supporting a denial of LTD benefits to Lucas in the face
of the overwhelming evidence provided by his treating physicians. The record
is replete with the continuing increase in severity of Lucas’ medical
problems.
Taking the evidence as
a whole, Lucas’ conditions clearly meet the definition of disability under the
Plan. The Court finds that the decision by EIP and its Appeals Committee is
not supported by substantial evidence and was clearly erroneous in view of the
reliable, probative and substantial evidence on the whole record, was arbitrary
and capricious, and was an abuse of discretion. Accordingly,
IT IS HEREBY
ORDERED that the decision by EIP to deny LTD benefits to
Lucas is reversed.
AND IT IS SO ORDERED.
__________________________
Marvin
F. Kittrell
July
10, 2008 Chief Judge
Columbia, South Carolina
James arose prior the enactment of 2006 S.C. Act No. 387, which changed
the appeals process for Employee Insurance Program determinations by providing
for appellate review by the ALC rather than the circuit court.
Typically, when the ALC reviews an administrative agency’s decision in its
appellate capacity, it is not permitted to re-evaluate the credibility of a
witness. See, e.g., Milliken & Co. v. S.C. Employment
Sec. Comm’n, 321 S.C. 349, 350, 468 S.E.2d 638, 639 (1996); Dixon v.
Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 358 (Ct. App. 1999); Armstrong v. Union Carbide, 308 S.C. 235, 237, 417 S.E.2d 597, 599 (Ct. App. 1992). The
trier of fact is in the best position to determine a witness’s credibility,
based on his observation of the witness’s live testimony. Dixon, 336
S.C. at 263, 519 S.E.2d at 358 (“Because the
appellate court lacks the opportunity for direct observation of witnesses, it
should accord great deference to trial court findings
where matters of credibility are involved.”). However, the
reasoning behind that rule does not apply here because EIP does not conduct a
contested case hearing with live witness testimony, but rather makes its
determinations based solely on a paper review. Thus, EIP is not in any better
position to evaluate credibility.
Exerting up to 10
pounds of force occasionally (Occasionally: activity or condition exists 1/3 of
the time) and/or a negligible amount of force frequently (Frequently: activity
or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or
otherwise move objects, including the human body. Sedentary work involves
sitting most of the time, but may involve waking or standing for brief periods
of time. NOTE: Jobs are sedentary if walking and standing are required only
occasionally and all other sedentary criteria are met.
Further evidence
supporting Lucas’ inability to perform his own occupation is presented in the
form of a letter from his supervisor, David Bell. Mr. Bell, Lucas’ supervisor
since November 2000, provided a letter to Standard concerning Lucas’ work
performance. It stated that Lucas suffered a stroke in 2001, was out of work
for several months, and upon his return was able to perform his job functions
satisfactorily, although he had some residual effects such as a visual problem,
speech problems and some motor function issues. Lucas continues to cope with
these problems. He stated that Lucas missed some work due to his diabetes and
stroke issues; however, he noted that in the summer of 2005 Lucas began having
more difficulty coming to work on a consistent basis. Specifically, Lucas
missed a day or two of work per week and by the end of 2005, was missing work a
week at a time. Further, he stated that when Lucas ceased working, he was only
working “approximately two weeks a month.” (R. at 113). He stated that at “the
same time his organizational skills, his ability to retain information, and his
attention to detail began to deteriorate.” Id. He noted that Lucas
became easily stressed, which at times “caused [Lucas] to almost shut down,”
and that he was not able to get his tasks “completed on time.” Id. Further, he stated that Lucas’ “accuracy, attention to detail, and
organizational skills deteriorated greatly from where they were before the
summer of 2005.” Id. At the time, Lucas “could not organize files or
his office so that he could find back up for documents or other information in
his office.” Id. Further, he stated that “often times when I asked him
for information or to do a task for me, he would not be able to respond because
of his inability to understand what I was seeking.” Id. He noted that
none of these problems existed prior to the summer of 2005. Finally, he
asserted in his letter that “I can only believe that change in his work was due
to his health issues which he could not overcome.” Id. Appellant was
not only struggling to complete the material duties of his job, but he was also
unable to go to work for weeks at a time. There was no evidence presented by EIP
to refute Mr. Bell’s statement. The unchallenged statements by his employer of
many years evidence the inability of Lucas to complete the material duties of
his occupation in a consistent and timely manner.
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