ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the South Carolina Administrative Law Court (ALC or Court)
pursuant to S.C. Code Ann. § 9-21-60 (Supp. 2005) upon the request for a
contested case hearing filed by Virginia Brown (Petitioner). Petitioner
contests the Final Agency Determination issued by Respondent South Carolina
Budget and Control Board, South Carolina Retirement Systems (Respondent or
Retirement Systems), which found Petitioner was not entitled to disability
retirement benefits. After notice to all of the parties, a hearing was
conducted on May 3, 2006, at the offices of the ALC in Columbia, South Carolina.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and taking into
consideration the burden of proof and the credibility of the witnesses, I make
the following Findings of Fact by a preponderance of the evidence:
Background
1. Petitioner
is a member of the Retirement Systems with more than six and a half years of
service in the South Carolina Retirement System (SCRS). On September 13, 2004,
Petitioner filed an application for disability retirement benefits alleging she
was permanently incapacitated from the further performance of her job as a
Purchasing Agent for Williamsburg County. In the application and attached
Disability Report, Petitioner alleged she was disabled from performing her job
due to Labile Hypertension and strokes.
2. After
Petitioner filed an application for disability retirement benefits, the
Retirement Systems sent her file to the South Carolina Vocational
Rehabilitation Department where it was assigned to a Disability Examiner. The
Disability Examiner gathered medical documents and referred Petitioner to Gene
J. Sausser, Ph.D. for a psychological evaluation.
The
Disability Examiner subsequently referred Petitioner’s file for a consultative
review by W. Pearce McCall, Ph.D. Dr. McCall concluded Petitioner currently could not perform her previous job due to depression but with treatment and
prescription medicine, she should return to a status that would allow her to carry
out her job duties. Based on Petitioner’s medical records, the report from Dr.
Sausser, and the assessment from Dr. McCall, the Disability Examiner found the
medical evidence indicated Petitioner “retains the ability to perform the
physical tasks associated with her job as a Purchasing Agent” but due to her
depression, she was restricted to performing unskilled work. The Disability
Examiner, therefore, recommended approval of Petitioner’s application with a
review in three years. The Medical Board, nevertheless, determined that based
on their review of the medical evidence, Petitioner did not meet the disability
standard set forth in the statute and issued a decision to deny Petitioner’s
application for disability retirement benefits.
Petitioner
then requested a reconsideration of the Medical Board’s action. Accordingly, the
Retirement Systems forwarded Petitioner’s file to a second Disability Examiner
at the Vocational Rehabilitation Department. That Disability Examiner also made
a recommendation that the Medical Board approve Petitioner’s application for
disability retirement benefits based on her depression with a review in three
years. On February 15, 2005, the Medical Board again issued a decision to deny
Petitioner’s application for disability retirement benefits based on their
review of the medical evidence.
Petitioner
requested an administrative review of the Medical Board’s action and as a
result, Director Peggy G. Boykin appointed Joel D. Leonard to review
Petitioner’s medical files. Based upon his review of the entire medical file
and the testimony at an Administrative Conference, Mr. Leonard recommended that
Petitioner’s application for disability retirement benefits be denied. On May 18, 2005, Director Boykin issued a Final Agency Determination adopting Mr. Leonard’s
recommendation and denying disability retirement benefits for Petitioner.
Petitioner’s
Job Duties
3. As
a Purchasing Agent for Williamsburg County, Petitioner’s essential job duties
included receiving requisitions, keying purchase orders, writing up and tagging
general fixed assets, completing and returning insurance forms on all county
equipment, and compiling vendor information. Petitioner’s job usually required
her to stand for one hour, walk for one hour, and sit for five hours; however,
the requirements of walking and standing varied each day. Petitioner also was
required to bend and reach occasionally and lift or carry less than ten
pounds.
Petitioner’s
Medical Conditions
4. Petitioner
alleges an inability to perform her previous job due to:
a. the
residual effects of Strokes and/or Transient Ischemic Attacks;
b. memory
problems, confusion, and an inability to focus; and
c. Labile
Hypertension.
5. The
evidence does not support a conclusion that Petitioner is disabled due to residual
effects from Transient Ischemic Attacks and/or Strokes. The nature of a
Transient Ischemic Attack means there are no residual effects. Accordingly,
any residual effects would have to result from a stroke. There is evidence to
indicate Petitioner may have experienced as many as two strokes in the past.
However, the only convincing evidence is that Petitioner had a small focal
lacunar infarct in the left thalamus.
On the other hand, Dr. Adams,
a neurologist who examined Petitioner, testified that she had a few ischemic
areas that are common with people in their fifties or sixties who smoke and/or
have high blood pressure.
However, Dr. Adams found no evidence of a stroke.
Considering the evidence as a whole, if Petitioner did have one or two strokes,
they were very mild or small strokes.
The
functional problems resulting from a stroke can include weakness in a limb,
language or speech abnormalities, and disorders of higher cortical function,
balance, and visual loss. Petitioner alleges walking limitations, weakness,
speech deficits, and facial drooping as a result of her strokes. However,
there were no particular difficulties in her speech that occurred during her
examination by Dr. Sausser. Moreover, both neurologists who testified agreed
that Petitioner is not suffering residual effects of a stroke. In fact, as of
October 20, 2004, Dr. Healy,
the neurologist who treated Petitioner following her most recent hospitalization
for a stroke, noted Petitioner’s stroke had resolved and there “wasn’t much in
the way of residual.” He further noted Petitioner was very stable from the
standpoint of her stroke. Furthermore, Dr. Adams testified she was not
experiencing any functional limitations as a result of her strokes when he
examined her in September 2005. For instance, Petitioner walks with a normal
gait, has equal strength in all four extremities, can do coordinated things
with her arms and legs, and communicates very well. Additionally, during her
testimony before the ALC, Petitioner exhibited no exceptional difficulty in
weakness, speech or facial drooping. Petitioner, therefore, does not have any
vocational limitations as a result of any strokes that would incapacitate her
from performing her previous job.
6. Petitioner
alleges an inability to perform her previous job due to memory problems,
confusion, and inability to focus. Petitioner’s evidence supporting this claim
consisted predominately of her subjective reports to others. The credible
medical evidence consisted of Dr. Healy who testified that these symptoms might be related to Petitioner’s depression. Dr. Gamble also recalled Petitioner had some trouble thinking but attributed those
symptoms not to a stroke but to the drug, Clonidine, which he later discontinued.
Dr. Sausser noted Petitioner’s attention was poor but further noted “she was
able to maintain adequate attention in the interview session today.” Dr.
Sausser also noted there were no problems with loose associations, thought blocking,
or other thought issues. This evidence does not support an inference that
Petitioner suffers disabling memory problems, confusion, or inability to focus
There
also were no objective tests to support Petitioner’s subjective claims
regarding mental problems. To the contrary, in her interview with Dr. Adams Petitioner
was “very aware” and showed no memory problems. Moreover, in her testimony
before this Court, Petitioner exhibited no significant memory problems,
confusion, or inability to focus. Furthermore, the medical records and
testimony of Doctors Healy and Adams certainly suggest that Petitioner’s
difficulty could be related to a combination of depression and alcohol use. The
convincing evidence, therefore, did not establish that Petitioner is precluded
from performing her previous job as a result of any of these conditions. In
other words, there is no vocational limitation or incapacitation as a result of
these alleged conditions.
7. Petitioner
also alleges an inability to perform her previous job due to Labile
Hypertension. Labile Hypertension indicates a condition in which blood
pressure fluctuates dramatically. In that regard, Petitioner presented the
testimony of Dr. Gamble. Dr. Gamble testified that he believed Petitioner is
disabled “solely based on our inability to control her blood pressure during
stressful occasions.” He testified that it “seems” that when Petitioner is
placed in stressful situations her blood pressure elevates. His belief was
that when she goes to work, her blood pressure “shoots up.”
However,
Dr. Gamble’s speculation concerning the effect of Petitioner’s work was not
supported by the evidence. In fact, he testified that in 90 percent of
instances of high blood pressure the cause is unknown. More importantly, there
is specific medical evidence in the record that contradicts Dr. Gamble’s
conclusions. For instance, the blood pressure readings contained in Dr.
Gamble’s records do not establish dramatic fluctuations in blood pressure. Most
of the readings taken at his office indicate “good” blood pressure. Two of the
notations of high blood pressure were based upon readings taken at home. One
occurred on October 3, 2003. When Petitioner arrived at the office her blood
pressure was 162/90. The second occurred more recently on October 14, 2005.
Yet, when Petitioner arrived at the office her blood pressure was 145/88, which
was not unusually high according to Dr. Gamble. Moreover, Dr. Healy who
monitored Petitioner’s blood pressure during her stay in the hospital and
during the follow-up visits did not observe or determine that Petitioner’s
blood pressure was labile. In fact, Dr. Healy’s observation was that
Petitioner’s blood pressure was controlled – “it was never not controlled.”
Furthermore,
the evidence does not sustain the inference that Petitioner’s asserted strokes
were related to work. In fact, the only instance in which a neurologist
diagnosed Petitioner with having a stroke occurred at home. In addition,
according to Dr. Gamble’s records Petitioner’s blood pressure appears to be
better controlled during the time she was working than during the time when she
was not.
The
evidence also suggests that Petitioner past behavior may have lead to her
hypertension. As noted above, the records reflect that Petitioner has a
history of both alcohol consumption and smoking. The medical testimony clearly
reflects that alcohol and smoking can exacerbate hypertension. In other words,
if a person with Labile Hypertension uses alcohol or tobacco, their risk of
suffering a Transient Ischemic Attack or Stroke is increased. Petitioner’s
witness, Dr. Gamble, even identified smoking as a “major offender” in relation
to her hypertension.
Additionally,
even if the Petitioner had Labile Hypertension that was aggravated by her work
environment, currently those concerns have been ameliorated. Petitioner
testified her blood pressure currently is under control. She has also reduced
her cigarette use to four or five per day. Petitioner also testified that she
has not drunk alcohol in more than one year. Furthermore, according to
Petitioner, her Labile Hypertension was related to a supervisor who started
working in early 2003. That supervisor, however, ceased working in that office
as of December 2005. Therefore, the precipitating cause of her high blood
pressure at work no longer exists.
Though
Dr. Gamble may understandably be concerned about the effect of Petitioner’s
work environment upon her health, there is a significant distinction between a
doctor’s concern about his patient’s potential health risks and that patient’s
entitlement to lifetime disability retirement benefits. Here, the evidence
does not support the inference that Petitioner has Labile Hypertension nor does
the evidence establish a functional impairment as a result of the Labile Hypertension.
As a result, Petitioner does not suffer a resulting incapacitation due to the Labile
Hypertension.
8. In conclusion, though Petitioner does not assert
depression as a disability, she has been diagnosed with depression by both Dr.
Gamble and Dr. Healy. In fact, at one time Dr. Healy believed Petitioner was
disabled from performing her previous job due to depression. Dr. Healy,
however, could not testify as to the permanence of Petitioner’s depression
because Petitioner discontinued treatment with him in November 2004.
Afterwards, Dr. Gamble treated Petitioner for depression using anti-depressant
medications. However, he does not believe that Petitioner is, currently, precluded
from performing her previous job. In fact, Petitioner is not receiving treatment,
aside from taking anti-depressants. Therefore, I find that the evidence does
not establish that Petitioner is permanently incapacitated from performing her
previous job as a result of depression. I make no finding as to the impact
depression may have upon her current ability to perform her previous job.
CONCLUSIONS
OF LAW
Based
on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The
ALC has jurisdiction to decide the issues in this case pursuant to S.C. Code
Ann. § 9-21-60 (Supp. 2005) of the South Carolina Retirement Systems Claims
Procedures Act. The standard of proof in an administrative proceeding is a
preponderance of the evidence. Anonymous v. State Bd. of Med. Exam’rs,
329 S.C. 371, 496 S.E.2d 17 (1998). Petitioner, therefore, must prove by a
preponderance of the evidence that she is entitled to the disability retirement
benefits for which she has applied.
Furthermore,
as the trier of fact, the ALC must weigh and pass upon the credibility of the
evidence presented. See South Carolina Cable Television Ass’n v.
Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). In
that regard, Petitioner’s credibility was a significant factor in this case.
Because much of the evidence submitted in a disability case is subjective, the
credibility of the member who is claiming disability is an important aspect in
evaluating the soundness of the claim. I found Petitioner’s credibility to be
dubious and, therefore, serious reflection was taken in weighing her testimony
in this case.
2. Respondent
provides disability retirement benefits to qualifying members who work for an
employer covered by one of its retirement systems at, or within ninety days of,
the time the member files an application for benefits. See S.C. Code
Ann. § 9-1-1540 (Supp. 2005).
3. According
to Section 9-1-1540, Petitioner is entitled to disability retirement benefits
if:
a. She is
mentally or physically incapacitated from the further performance of her job as
an Instructional Aide;
b. The
incapacity is likely to be permanent; and
c. She
should be retired.
To determine if
Petitioner is mentally or physically incapacitated from performing her job
duties and whether that incapacity is likely to be permanent, the ALC should
examine whether there is: (1) a medical diagnosis; (2) a mental or physical
impairment; (3) a vocational limitation; (4) incapacitation; and (5)
permanency. First, a medical diagnosis exists if sufficient medical records
indicate that an individual suffers from a particular physical or mental
medical condition. Second, a mental or physical impairment exists if the
diagnosed medical condition interferes with a person’s ability to perform
certain tasks. Third, a vocational limitation exists if the impairment is job related
and the tasks that cannot be performed interfere with a person’s ability to do
her job. Fourth, a person is incapacitated if the vocational limitations
prevent a person from doing her job. Fifth, the impairment that incapacitates
a person from performing the job must be permanent in nature.
Finally,
once a determination is made about whether Petitioner is mentally or physically
incapacitated from performing her job duties and whether the incapacity is
likely to be permanent, the Court should make the additional determination
regarding whether Petitioner should be retired. The statute requires an
analysis of whether an award of disability retirement benefits would be proper
based on the particular facts of the case.
4. Petitioner
did not meet the first two requirements of the disability standard in that she
did not show she is mentally or physically incapacitated from performing her
job duties and/or that incapacity is likely to be permanent. Moreover,
Petitioner does not meet the third requirement of the disability standard by
proving that she should be retired. Petitioner was using alcohol and
cigarettes in July 2004 when she had the stroke. The doctors’ testimony
indicates alcohol and cigarettes exacerbate Labile Hypertension and extremely
high blood pressure results in strokes. It is clear Petitioner’s own personal
habits and behaviors were a factor in her hypertension. Nevertheless, despite
repeated warnings and instructions by various doctors, Petitioner continued to
use alcohol and cigarettes, even after July 2004. As late as April and May of
2005, Petitioner admittedly continued to smoke at least a half pack of
cigarettes per day and admittedly continued to drink, although the actual
amount she drank is questionable. Based on the objective evidence in the
record, it would be imprudent to pay disability retirement benefits under the
circumstances in this case
In conclusion, the evidence does not support a finding that
Petitioner is permanently incapacitated from performing her job as a Purchasing
Agent. Petitioner, therefore, failed to meet her burden of proving that she is
entitled to disability retirement benefits.
ORDER
Based
upon the foregoing Findings of Fact and Conclusions of Law:
IT
IS HEREBY ORDERED that Petitioner’s application for disability retirement
benefits is denied.
AND
IT IS SO ORDERED.
________________________________
Ralph
King Anderson, III
Administrative
Law Judge
June 20, 2006
Columbia, South Carolina
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