SC Administrative Law Court Decisions

II. Analysis

A. Findings of Fact

I find by a preponderance of the evidence the following facts:

1. Procedural History

White, a member of the Retirement System with almost six years of service in the system, was a Communications Specialist for Charleston County until February 14, 2004. On February 19, 2004, she filed an application for disability retirement benefits alleging a disability prevented her from performing her job due to diabetes, a blind spot in her left eye, hip pain, and back pain.

Her file was sent to the South Carolina Vocational Rehabilitation Department where it was assigned to a Disability Examiner. The Disability Examiner gathered medical documents and referred White's file to Dr. James H. Weston, M.D. for a Physical Residual Functional Capacity Assessment. Based on the medical documents (including Dr. Weston's assessment), the Disability Examiner recommended that the Medical Board deny White's application for disability retirement benefits since she retained the capacity to perform her job duties. On May 18, 2004, the Medical Board disapproved White's disability request.

White requested a reconsideration of the Medical Board's action. As a result, White's file was sent to a second Disability Examiner at the Vocational Rehabilitation Department. The second Disability Examiner gathered additional medical evidence, received medical evidence from White's attorney, and made a recommendation that the Medical Board disapprove the application for disability retirement benefits on the ground that White retained the capacity to perform her job duties. On November 2, 2004, the Medical Board again disapproved White's disability application.

White requested an administrative review of the Medical Board's action. As a result, Director Peggy Boykin appointed Robert E. Brabham, Ph.D. as a vocational consultant to review White's medical files. Dr. Brabham held an Administrative Conference on March 30, 2005, and at the conference heard testimony from White regarding her disability claim.

Dr. Brabham reviewed the medical file and on May 8, 2005, recommended that White's application for disability retirement benefits be denied. On May 16, 2005, Director Boykin issued a Final Agency Determination adopting Dr. Brabham's recommendation and denying disability retirement benefits for White. On June 20, 2005, White filed a request for a contested case hearing before the Administrative Law Court challenging the denial of disability benefits.

2. Job Duties

As a Communications Specialist for Charleston County, White answered the telephone, provided information to the public, operated the NCIC/SLED computer, and ran reports regarding inmates. She also dialed calls for officers and transferred calls to officers. She was required to reach frequently, and stoop, handle, and lift occasionally. Her duties required her to sit for most of her working hours, with little standing and walking. She constantly used the telephone and computer to perform her job duties and occasionally was required to lift and/or carry less than ten pounds. Here work duties often required her to work twelve‑hour swing shifts.

3. Medical Conditions

a. Anxiety

White reported some anxiety in March 2004 and Dr. Stapleton indicated that White presented with anxiety and stress over her job situation and finances. By late 2004, Dr. Stapleton had prescribed Lexapro to help White with her anxiety. During an appointment on December 7, 2004, White reported the Lexapro was working "okay" and she was less "weepy‑eyed." By January 5, 2005, however, she had discontinued use of Lexapro due to the side effects she experienced, specifically dizziness.

Although White experienced some anxiety regarding her situation, she reported no functional limitations resulting from the anxiety. During the Administrative Conference on March 30, 2005, White stated that the Lexapro had helped reduce her stress levels but she did not think she needed it anymore.

b. Rheumatologic Conditions

White alleges pain in her hips, back, and legs. As a result, Dr. Stapleton referred White to see Marcy Bolster, M.D., a rheumatologist. Dr. Bolster began treating White in May 2002. On several occasions, Dr. Bolster referred White for physical therapy to treat trochanteric bursitis and low back pain. Dr. Bolster also referred White to Dr. John Glaser, who is an orthopedic surgeon at MUSC, and the Pain Management Clinic at MUSC.

Pursuant to an examination on August 31, 2004, Dr. Glaser determined White suffered a "very slight grade 1 degenerative spondylolisthesis of L4 and L5 with mild stenosis." Dr. Glaser informed White that injections would be a reasonable treatment for her condition. When White inquired about other medications, Dr. Glaser informed her the only other medications to try would be narcotic medications but he explained he did not do long‑term narcotic medication management.

Upon examination at the Pain Management Clinic, Dr. Zyblewski concluded White "would benefit greatly from injections into the facet joints" but "is unwilling to undergo any interventional procedures and would much rather have medical management alone." Dr. Zyblewski prescribed Zanaflex and recommended that White consider interventional procedures if she experienced little or no relief.

In a letter dated August 15, 2005, Dr. Bolster indicated White's rheumatologic diagnoses were osteoarthritis of the lumbar spine and right trochanteric bursitis. According to Dr. Bolster, White experienced improvement with an injection of the right trochanteric bursitis. As of the date of the letter, however, White had not received steroid injections for her lumbar spine. Dr. Bolster expected White to improve with the steroid injections as recommended by Dr. Glaser.

c. Uveitis

White also alleges she is precluded from performing her previous job due to a blind spot in her eye. The medical record clearly supports a diagnosis of uveitis in this case. White has had injections in an attempt to resolve uveitis when it "flares up." As a result of the uveitis, White's vision is 20/50 bilaterally.

d. Diabetes

White also alleges she is precluded from performing her previous job due to diabetes. The medical record clearly supports a diagnosis of diabetes in this case. She has been taking medication for several years with sporadic control of her diabetes and she experiences fatigue as a result of her diabetes.

e. Disruption of Sleep Pattern

Dr. Stapleton suggested White could not perform her previous job due to the disruption of her sleep pattern. According to Dr. Stapleton, the irregular schedule was directly related to the "spells" White experienced. However, Dr. Stapleton could not identify whether the spells were related to her blood sugar or the sleep pattern. Moreover, Dr. Stapleton testified White's spells were resolved when she changed to the regular, day schedule. Dr. Stapleton further testified that once White's spells were resolved, White was not willing to try to go back to swing shifts because she was afraid the spells would return.

B. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

This Court has jurisdiction over this case pursuant to S.C. Code Ann. Sec. 9‑21‑60 (Supp. 2005) of the South Carolina Retirement Systems Claims Procedures Act. The sole issue here is whether White is entitled to disability retirement benefits pursuant to S.C. Code Ann. Sec. 9‑1‑1540 (1986 & Supp. 2005).

1. Controlling Statute

The controlling statute explains in pertinent part that "a member . . . may be retired by the board . . . on a disability retirement allowance if the medical board . . . 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." S.C. Code Ann. Sec. 9-1-1540 (Supp. 2005). Thus, the instant case turns on whether White is "mentally or physically incapacitated for the further performance of duty" and whether "the incapacity is likely to be permanent."

2. Application to Facts

In making factual determinations, the judge must both weigh the evidence and evaluate witness credibility. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995). Weighing of evidence is purely a discretionary matter for the judge; for example, even when evidence is uncontradicted, the trial judge is not required to accept such evidence if the judge finds the evidence unconvincing. All v. Prillaman, 200 S.C. 279, 20 S.E.2d 741 (1942). Likewise as to credibility; even for expert testimony, the judge must give the testimony the credibility the judge determines it deserves. Florence County Dep't of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992); S.C. Cable Tel. Assn. v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992); Greyhound Lines v. S.C. Public Serv. Comm'n, 274 S.C. 161, 262 S.E.2d 18 (1980).

Here, the evidence supporting the findings of fact does not establish that White suffers any physical or mental impairments as a result of anxiety. For example, the use of Lexapro gave her relief albeit accompanied by some dizziness. In addition, White previously had testified that she believed Lexapro had helped reduce her stress levels and that she did not think she needed it anymore. Accordingly, the evidence fails to support any vocational limitations or incapacitation as a result of anxiety. On the contrary, to the extent of any anxiety suffered by White, such is not of a degree that would preclude the performance of her previous job.

White has been diagnosed with osteoarthritis of the lumbar spine and right trochanteric bursitis resulting in pain in her low back and hip. Given such pain, according to Dr. Bolster, White is limited to working at a light level of exertional activity. Significantly, White's job duties do not require her to work at a level that is beyond light. Therefore, White is not incapacitated from performing her "light" job as a Communications Specialist as a result of her diagnosed rheumatologic conditions.

White experiences the physical impairment of reduced visual acuity. Such impairment, however, does not rise to the level of a vocational limitation in the context of her particular job. For example, injections have had positive results when resolving uveitis "flares ups." Further, her vision is 20/50 bilaterally. Thus, she has a visual acuity acceptable for office work. Accordingly, White's uveitis does not permanently preclude her from performing her previous job.

Certainly, it is true that White has an impairment due to diabetes. She has been taking medication for several years with sporadic control of her diabetes and she experiences fatigue as a result of her diabetes. However, such symptoms do not rise to the level of presenting a vocational limitation for White's particular job. Rather, her diabetic condition does not leave her incapacitated. Therefore, White's diabetes does not permanently preclude her from performing her previous job.

As to a sleep disorder, first, the evidence is insufficient to support a diagnosis of any sleep disorder. In fact, rather than a sleep disorder, one would typically expect a disruption of sleep pattern due to working the twelve‑hour swing shifts involved in this case. Second, the evidence does not establish the etiology of the spells White experienced. For example, the evidence does not establish whether such spells resulted from poor blood sugar control or disrupted sleep patterns. Moreover, the evidence here simply does not establish that the disruption of White's sleep pattern is produced by a medical condition. As a result, the disruption of sleep pattern is not a medical condition that would permanently preclude White from performing her previous job.

III. Order

Accordingly, whether considered individually or as a whole, the medical conditions of Lavinia White do not mentally or physically incapacitate her from the further performance of her duties as a Communications Specialist for Charleston County. Thus, disability retirement benefits under S.C. Code Ann. Sec. 9-1-1540 (Supp. 2005) must be denied.

AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge

Dated: December 28, 2005

Greenville, South Carolina