ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The above-captioned case is before this Court pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2004) for a contested case hearing. Petitioner Debra Creech seeks review of the December 15, 2004 Final Agency Determination of Respondent South Carolina Budget and Control Board, South Carolina Retirement Systems (SCRS), in which SCRS denied her application for state disability retirement benefits under S.C. Code Ann. § 9-1-1540 (Supp. 2004). Petitioner contends that she suffers from fibromyalgia and several other medical conditions and that, as a result of these conditions, she is physically incapacitated from the further performance of her job as a license examiner with the South Carolina Department of Motor Vehicles such that she is entitled to disability retirement benefits from the South Carolina Retirement System. SCRS concedes that Petitioner does suffer from fibromyalgia and may have certain other minor medical conditions, but further contends that any impairments as a result of her conditions are not so severe as to permanently incapacitate her from performing her previous job duties as a license examiner, and thus do not entitle her disability retirement benefits under Section 9-1-1540.
After timely notice to the parties, a hearing of this matter was held on May 18, 2005, at the South Carolina 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 permanently, physically incapacitated from the further performance of her job as a license examiner such that she should receive disability retirement benefits from SCRS.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:
Procedural Background
1. Petitioner is a fifty-three-year-old woman who was employed for over thirteen years as a license examiner with the South Carolina Department of Motor Vehicles (DMV) in Allendale, South Carolina. Petitioner left work with the DMV on September 24, 2003, to undergo a scheduled hysterectomy. Petitioner did not return to work after recovering from the surgery and was placed on leave without pay from the DMV on December 1, 2003. Petitioner was subsequently terminated from her employment with the DMV in September 2004.
2. On January 14, 2004, Petitioner filed an application for disability retirement benefits with SCRS, in which she contends that physical impairments caused by her fibromyalgia and other medical conditions permanently prevent her from resuming her job as a license examiner with the DMV. After receiving Petitioner’s application, SCRS forwarded her file to the South Carolina Department of Vocational Rehabilitation for review of her disability claim. Disability Examiner Jewel M. Golden-Wright gathered and reviewed Petitioner’s medical file, and, on May 20, 2004, issued a recommendation to the SCRS Medical Board that Petitioner’s disability retirement application be denied. In the recommendation, Ms. Golden-Wright recognized that Petitioner suffers from pain and tenderness as a result of her conditions, but further concluded that Petitioner “retains the ability to perform all of her job duties as a License[] Examiner.” Resp’t Ex. # 1, at 65. On May 25, 2004, the Medical Board accepted Ms. Golden-Wright’s recommendation and denied Petitioner’s claim for disability retirement benefits.
3. Petitioner requested a reconsideration of the Medical Board’s decision, and her file was sent to a second Disability Examiner at the Department of Vocational Rehabilitation for additional review. After reviewing the medical documentation regarding Petitioner’s conditions, including an additional opinion regarding Petitioner’s condition from a rheumatologist, the second Disability Examiner, Martha L. Spangler, concluded that the diffuse body pain and profuse tenderness Petitioner suffers as a result of her fibromyalgia, particularly the pain in her knees, limits her to light work activities and prevents her from performing her usual work activities. Accordingly, on August 3, 2004, Ms. Spangler issued a recommendation that Petitioner’s disability retirement application be granted. Resp’t Ex. # 1, at 32. However, on August 10, 2004, the SCRS Medical Board again denied Petitioner’s application for disability retirement benefits based upon its conclusion that the medical evidence and supporting documentation did not warrant a finding that Petitioner has a “total and permanent continuing disability.” Resp’t Ex. # 1, at 33.
4. Petitioner then requested administrative review of the Medical Board’s decision before the Director of SCRS, Peggy G. Boykin. Ms. Boykin appointed Joel D. Leonard, an independent vocational rehabilitation consultant, to review Petitioner’s disability claim. In evaluating Petitioner’s claim, Mr. Leonard conducted an administrative conference on December 7, 2004, at which Petitioner and her counsel were present, and reviewed the entire file concerning Petitioner’s disability claim, including the documents obtained by the disability examiners and documents submitted by Petitioner and her counsel. On December 8, 2004, Mr. Leonard issued a report, in which he concluded that, while “the record supports the diagnosed presence of fibromyalgia as well as related impairments concerning pain . . . . [,] the progression of [Petitioner’s] claim and the concurrent medical evidence does not support a finding in which she is permanently precluded from performing her specific job.” Resp’t Ex. # 1, at 7. Consequently, Mr. Leonard recommended that Petitioner’s claim for disability retirement benefits be denied. Based upon Mr. Leonard’s report, Ms. Boykin issued a Final Agency Determination denying Petitioner’s application for disability retirement benefits from SCRS on December 15, 2004. Petitioner now seeks review of that determination before this Court.
Petitioner’s Medical Conditions
5. Petitioner currently suffers from a number of medical conditions, including fibromyalgia, migraine headaches, hypothyroidism, allergies, a narrow nasopharynx, hearing loss in her right hear, a cyst on her right kidney, a bulging disk in her cervical spine, irritable bowl syndrome, rosacea, thickening vocal cords, diabetes, hypertension, and a vitamin B12 deficiency. See Resp’t Ex. # 1, at 40, 47. Of these conditions, Petitioner identifies the pain and discomfort caused by her fibromyalgia as the primary reason that she is unable to perform her duties as a license examiner for the DMV. Resp’t Ex. # 1, at 257. Similarly, the disability examiners that reviewed Petitioner’s claim primarily focused upon her fibromyalgia as the most likely basis for finding her permanently disabled from the further performance of her job. See Resp’t Ex. # 1, at 32, 65.
6. Petitioner was first diagnosed with fibromyalgia in 1999, and her diagnosis has been confirmed by several other physicians in subsequent years. See Resp’t Ex. # 1, at 40-41, 69-71, 127, 148-151. Upon examining Petitioner in 2002, Dr. Bruce E. Goeckeritz, a rheumatologist at the Medical College of Georgia, found that Petitioner “is tender in 18 out of 18 classic fibromyalgia tender points as well as in areas of myofascial pain” and suffers from “[d]iffuse pain syndrome of many years’ duration consistent with fibromyalgia and associated with myofascial pain, especially [in her] right neck, shoulder, trapezius ridge and right buttock.” Resp’t Ex. # 1, at 150. During an examination in April 2004 as part of the review of her disability claim, Dr. Michael L. Blubaugh noted that Petitioner exhibited “diffuse muscle tenderness, especially with palpation of the shoulders superiorly and the trapezius muscles, upper arm[] muscles and upper leg muscles” and he diagnosed her with “probable fibromyalgia.” Resp’t Ex. # 1, at 69-71. As a result of her fibromyalgia, Petitioner suffers from diffuse, significant body pains, particularly in her neck, upper back, and shoulders, as well as in her knees and ankles. In addition to suffering pain and discomfort, Petitioner is often fatigued as a result of her fibromyalgia.
7. Petitioner testified that the pain and fatigue caused by her fibromyalgia has significantly limited her ability to effectively carry out the activities of daily living, such as running errands, performing daily household chores, and engaging in social activities. She further testified that this pain, fatigue, and discomfort made it difficult and uncomfortable for her to perform her job duties as a license examiner at the DMV, both when conducting license tests in vehicles and when working at the counter in the office. Further, the two physicians that have most closely examined Petitioner have confirmed the physical limitations faced by Petitioner as a result of her fibromyalgia. Petitioner’s physician, Dr. Sarah Schumacher, stated her opinion in a January 2004 letter that Petitioner “has significant medical conditions, which limit her mobility, and [do not] allow her to do the necessary things that her job requires,” and thus have rendered her “physically unable to do the duties of her current job.” Resp’t Ex. # 1, at 117-18. Similarly, upon re-evaluating Petitioner’s condition in June 2004, Dr. Goeckeritz concluded that the diffuse pain caused by Petitioner’s fibromyalgia “is limiting her ability to perform the usual activities of daily living, as well as maintain gainful employment,” and he expressed his opinion that “[Petitioner] cannot continue in the work she was doing prior to applying for disability.” Resp’t Ex. # 1, at 40-41.
8. Despite the pain and fatigue caused by her fibromyalgia, Petitioner is not incapacitated from all physical activity. In a “Physical Residual Functional Capacity Assessment” performed in May 2004, Dr. Richard Weymouth found that Petitioner was able to lift 50 pounds occasionally and 25 pounds frequently, to stand and sit for 6 hours in an 8-hour workday, to push or pull without limitation, and to occasionally climb, balance, stoop, kneel, crouch, and crawl. Resp’t Ex. # 1, at 96-103. Accordingly, Dr. Weymouth concluded that the “objective evidence indicates [Petitioner] can do med/light work.” Resp’t Ex. # 1, at 101. In addition, while Petitioner had, in consultation with her physicians, considered retirement because of her fibromyalgia since 2002, she continued to perform her job duties as a license examiner with the DMV, albeit with substantial discomfort, until September 2003, when she left work to undergo scheduled surgery. However, even though Petitioner retains the raw physical capability to perform certain of her job tasks—that is, her musculoskeletal system is essentially intact and the range of motion in her extremities is not significantly limited—the severe pain and discomfort associated with her performance of those tasks effectively renders her unable to continue with her job duties at the DMV.
9. In addition to fibromyalgia, Petitioner suffers from several other relatively serious medical conditions, including hypothyroidism, hypertension, and diabetes. However, under the care of her physicians, Petitioner has successfully treated and managed these conditions with medications, and there is no evidence that these conditions have incapacitated Petitioner or otherwise caused any substantial functional impairments to her physical or mental capabilities as they relate to her ability to perform light and medium work. Similarly, Petitioner has been diagnosed with a number of other minor medical conditions, such as irritable bowel syndrome, allergies, rosacea, and a bulging disc in her neck. While many of these conditions may affect Petitioner’s quality of life in certain limited ways, the discomforts caused by these conditions have not incapacitated Petitioner or otherwise resulted in any significant functional impairments or limitations to her physical and mental abilities as they relate to her work.
Petitioner’s Job Duties
10. Prior to leaving work for scheduled surgery in September 2003, Petitioner was employed with the DMV as a license examiner at its office in Allendale, South Carolina. Given the small size of the Allendale office, Petitioner’s job duties at the office not only included conducting driver’s license examinations and road tests for both commercial and non-commercial licenses, but also included staffing the counter in the office to process transactions involving vehicle registrations and titles, tax documents, and license plates. When conducting license examinations, Petitioner was required to frequently get into and out of the vehicles used in the tests, which, in the case of the tractor trailers used in testing for commercial driver’s licenses, would often present Petitioner with a significant physical challenge. Petitioner was also required during these examinations to spend a significant amount of time standing, walking, and crouching outdoors while examining vehicles and observing certain skills tests. While working inside at the office’s counter, Petitioner was seated at a stool behind the counter and was required to operate a computer, printer, and other basic office equipment. Based upon the nature of these duties, Petitioner’s workday was generally equally divided between walking, standing, and sitting, with some occasional stooping and bending, and involved only occasional, light lifting. Resp’t Ex. # 1, at 249, 260. In sum, Petitioner’s job duties as a license examiner with the DMV imposed physical demands ranging from light customer service office work to medium inspection and examination work.
Summary
11. Based upon the medical evidence and other testimony presented at the hearing, I find that Petitioner suffers from fibromyalgia, that the pain and fatigue caused by this condition limit her ability to carry out tasks in both her personal life and her professional life, and that the condition is likely to be permanent. I further find that, as a result of the pain, fatigue, and discomfort associated with her fibromyalgia, Petitioner’s ability to undertake the physical demands of her job duties as a license examiner with the DMV is limited such that she is permanently incapacitated from the further performance of those duties.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. This tribunal has jurisdiction over this matter pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).
2. S.C. Code Ann. § 9-1-1540 (Supp. 2004) 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 medical board, 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. In the case at hand, Petitioner claims that the pain, fatigue, and other physical impairments caused by her fibromyalgia and other medical conditions have rendered her physically incapacitated for the further performance of her duty as a license examiner with the DMV such that she is entitled to disability retirement benefits from SCRS.
4. Petitioner bears the burden of establishing, by a preponderance of the evidence, that she 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.”).
5. The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
6. In general, “expert opinion evidence is to be considered or weighed by the triers of the facts like any other testimony or evidence . . . [;] the triers of fact cannot, and are not required to, arbitrarily or lightly disregard, or capriciously reject, the testimony of experts or skilled witnesses, and make an unsupported finding to the contrary of the opinion.” 32A C.J.S. Evidence § 727, at 82-83 (1996). However, the trier of fact may give an expert’s testimony the weight he or she determines it deserves. Florence County Dep’t of Soc. Servs. v. Ward, 310 S.C. 69, 72-73, 425 S.E.2d 61, 63 (Ct. App. 1992). Further, the trier of fact may accept the testimony of one expert over that of another. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992).
7. In the case at hand, there is no dispute that Petitioner suffers from fibromyalgia and that her fibromyalgia causes her some measure of pain and fatigue. Rather, the dispute in this case is over the severity of Petitioner’s condition. Here, while the SCRS Medical Board and two vocational rehabilitation experts retained by SCRS concluded that Petitioner’s condition is not so severe as to preclude her from further employment as a license examiner, the two physicians who have most closely examined Petitioner and are most familiar with her condition, as well as one of the disability examiners who reviewed Petitioner’s claim for SCRS, found that the diffuse pain caused by Petitioner’s fibromyalgia was of such severity that she would be unable to resume her job duties with the DMV. The conclusion that Petitioner is, in fact, disabled is borne out by the medical documents in the record and by Petitioner’s testimony, and, as such, I find it to be credible. In particular, I find that the diffuse muscle tenderness and pain Petitioner suffers makes her unable to meet the physical demands required of her when conducting commercial driver’s license examinations, which require lengthy testing during which Petitioner must climb into and out of trucks, stand outdoors for over an hour, and walk and crouch to observe certain tests.
8. As the trier of fact in this matter, this tribunal is charged with weighing all of the evidence presented in this case and with resolving the conflicts in that evidence, including conflicting opinions between experts. In the instant case, all of the medical and vocational rehabilitation experts who have evaluated Petitioner have concluded that she suffers from fibromyalgia. And, while some of those experts disagree as to the severity of that condition, I find that the weight of the evidence in this case suggests that the pain, fatigue, and discomfort Petitioner suffers as a result of her fibromyalgia have permanently incapacitated her from the further performance of her job duties as a license examiner with the DMV. Therefore, I further find that Petitioner’s application for disability retirement benefits from SCRS should be granted.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that SCRS shall GRANT Petitioner’s application for disability retirement benefits pursuant to S.C. Code Ann. § 9-1-1540 (Supp. 2004).
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
July 22, 2005
Columbia, South Carolina |
