ORDERS:
ORDER REVERSED
INTRODUCTION
In its Final Order and Decision (“Order 1") dated June 8, 2001, the South Carolina
Department of Health and Human Resources (“Department” or “Respondent”) denied the request
of Trenton Atkinson (“Appellant” and/or “Trenton”) for Medicaid benefits under the TEFRA
category based upon a disability claim. On July 5, 2001, Donna Atkinson, mother of the Petitioner,
appealed that decision to the Administrative Law Judge Division (“Division”). See ALJD Docket
No. 01-ALJ-08-0279-AP. The appeal was assigned to the Hon. Ray N. Stevens, Administrative Law
Judge, to be heard.
On November 30, 2001, Judge Stevens issued an Order wherein he vacated the Final Order
and Decision of the Department and remanded the case to the Department. In the Order he directed
the Department to “reassess Atkinson’s limitation in the functional domain of “Caring for Yourself.”
Further, Judge Stevens ordered the Department to establish “findings of facts and conclusions of law
supported by such detail and rationale as are necessary for a proper decision.”
Subsequent to Judge Stevens’ Remand Order, the hearing officer for the Department issued
another Final Order and Decision (“Order 2") on February 12, 2002. In Order 2, the hearing officer
stated that the issue before him was whether the Department “was correct that the Petitioner
(Trenton) did not meet the categorical criteria, i.e., disability, of the TEFRA category of Medicaid”
as stated at § 2.06.02 and § 9.14 of the Department’s Medicaid Policy Manual. Again, the
Department denied the relief sought by Appellant. Order 2 was appealed by Appellant to the
Division. The appeal was assigned on April 16, 2002 to the undersigned. After notice to the parties,
oral arguments were held at the offices of the Division in Columbia, South Carolina on October 28,
2002.
The transcript and other filings, as well as the complete file in the prior case (Docket No. 01-ALJ-08-0279-AP), are made a part of the record in this case in lieu of requiring duplicate filings by
the parties. After careful consideration of the record in the case, including the two decisions of the
Department, the briefs submitted by both parties, and the oral arguments, I conclude that the
Department’s decision must be reversed and that the Appellant is entitled to Medicaid benefits.
FACTUAL BACKGROUND
Trenton Atkinson was born on June 11, 1992 to Donna Atkinson and Jeffrey Atkinson. He
is ten (10) years of age. He lives with his family in Union County, South Carolina, where he attends
elementary school. Trenton suffers from two serious physical conditions and impairments: Ornithine
Transcarbamylase Deficiency (“OTC”) and Attention Deficit Hyperactive Disorder (“ADHD”).
OTC is an extremely rare hereditary metabolic disorder that prevents the body from producing
a functional protein to handle or break down certain amino acids. The result is a build up of
ammonia in the blood stream which, if uncontrolled, leads to severe and permanent toxic brain
damage and possibly death. There is no cure for this condition. In Trenton’s case, this condition and
its effects were first noticed in early December 1999 when Trenton complained of sickness, suffered
disorientation and nausea accompanied with vomiting, and complained that he could not see well.
He was hospitalized in Union, South Carolina where he was examined by an ophthalmologist and
where he underwent a brain scan. Upon release from the hospital in Union, Trenton’s condition
worsened and he was admitted to the hospital in Greenville, where he was in a coma for some time
and was ultimately diagnosed with OTC. Because of his OTC, Trenton must follow a strict regimen
of diet and medications. He can eat only specially prepared, low protein meals which must be given
at regular intervals. Trenton’s condition is managed by a treating geneticist, Dr. Rogers, along with
a nutritionist, Ms. DiMucci-Ward, who advise Trenton’s parents as to how much protein Trenton can
ingest at any given time. The amount of protein in each food Trenton eats, even fruits and vegetables,
must be carefully calculated to the tenth or hundredth of a gram and adjusted according to Trenton’s
condition on a given day. For example, if Trenton has a cold, the amount of protein in his diet must
be adjusted downward because the drip of mucus down the back of his throat contains proteins.
ADHD is a neurological condition which may cause impulsiveness, restlessness,
disorganization, hyperactivity, distractability, and mood swings. Because of Trenton’s ADHD, he
takes medication and has a “shadow” at school who works with him one-on-one to help him
concentrate and direct his activities.
On July 11, 2000, Trenton’s parents applied for disability or Medicaid benefits under the
TEFRA category at the Union County office of the South Carolina Department of Social Services
(“DSS”). Upon receipt of the application, the case was referred by DSS to the South Carolina
Vocational Rehabilitation Department (“Voc Rehab”) for a determination on Trenton’s disability.
Dr. Constance Yearling, a pediatrician, and Dr. Pierce McCall, a psychologist, both of whom are
medical consultants for Voc Rehab, reviewed records from Greenville Memorial Hospital, from
Trenton’s treating physicians, and from the Union, South Carolina school district. Further, they
spoke with Trenton’s mother and with one of his teachers.
After a review of Trenton’s records, Dr. Yearling gave the opinion that his OTC constituted
a physical impairment which resulted in a less than marked limitation on his ability to function at an
age-appropriate level in his personal development. Dr. McCall evaluated Trenton’s ADHD and
opined that this impairment caused a marked limitation in age-appropriate functioning in the area
of concentration, persistence, or pace. On October 25, 2000, Voc Rehab denied Trenton’s disability
claim.
On November 1, 2000, DSS notified Appellant that his claim forMedicaid benefits had been
denied because he had failed to meet the disability criteria of the TEFRA category. On November
6, 2000, Appellant’s parents appealed that determination by DSS and requested a hearing. The
appeal was forwarded by DSS to the Division of Appeals of the Department. A hearing was
conducted by a hearing officer on February 2, 2001 pursuant to the Administrative Procedures Act.
Subsequently, Order 1 was issued on June 8, 2001 wherein the Department denied Petitioner’s
request.
Order 1 was appealed to the Administrative Law Judge Division. After a hearing, The Hon.
Ray Stevens issued his order dated November 30, 2001. Judge Stevens quoted the applicable
standard from 42 U.S.C. § 1382c(a)(3)(C)(i) (Cum. Supp. 2000) which provides that a person under
18 is disabled if:
(1) he has a medically determinable physical or mental impairment,
(2) which results in marked and severe functional limitations, and
(3) which can be expected to result in death, or
(4) which has lasted or can be expected to last for a continuous period of not less than 12
months.
Further, Judge Stevens noted that 20 C.F.R. §416.924(a) (2000) provides a three step
process to determine whether the disability criteria are met. This process is as follows:
(1) if you are doing substantial gainful activity, you will not be determined disabled and your
claim will not be reviewed any further;
(2) if you are not doing substantial gainful activity, your physical or mental impairment(s) will
be considered to see if you have an impairment or combination of impairments that are severe.
If it is not severe, it will then be determined that you are not disabled and your claim will not
be reviewed any further;
(3) if your impairment(s) is severe, your claim will be reviewed further to determine whether
you have an impairment(s) that meets, medically equals, or functionally equals in severity
an impairment that is listed in appendix 1 of subpart P of part 404. If you have such an
impairment(s), and it meets the duration requirement of twelve (12) months, it will be found
that you are disabled.
As to the first criterion, Judge Stevens found and determined that Appellant was a child in
elementary school and was not engaged in substantial gainful activity. Further, he found that
Appellant met the second criterion since he had two documented severe physical impairments, OTC
and ADHD. With regard to the third level of inquiry, Judge Stevens limited the focus of his order
to the question of whether the Appellant’s impairments were functionally equivalent to the listed
impairments, stating that the Appellant “does not argue that his impairments meet or medically equal
one of the ‘listed impairments.’” In assessing whether an individual’s impairments functionally equal
the listed impairments, the hearing officer is required to evaluate the individual’s functioning in six
domains:
(1) acquiring and using information;
(2) attending and completing tasks;
(3) interacting and relating with others;
(4) moving about and manipulating objects;
(5) caring for yourself;
(6) health and physical well-being.
20 C.F.R. § 416.926a(b)(1)(i)-(vi). If the individual has one “extreme” or two “marked” limitations
in these functional domains, his impairments are considered functionally equivalent to the listed
impairments and he is deemed disabled. 20 C.F.R. §416.924a(a) and (b)(2).
The hearing officer found that Trenton had a “marked” limitation in the area of “attending and
completing tasks” due to the effects of his ADHD, but found that Trenton had “less than marked”
limitations in other domains, including the area of “caring for yourself.” After reviewing the entire
record, Judge Stevens found that the hearing officer’s finding that Trenton had a less than marked
limitation in the functional domain of “Caring for Yourself” was based upon implicit fact finding and
was thus insufficient to determine whether the finding was supported by the evidence or the law had
been properly applied. Accordingly, the case was remanded by Judge Stevens to the hearing officer
to reassess Trenton’s limitations in the area of “Caring for Yourself” and to set forth specific and
express findings of fact to support his conclusions for the denial of the claim.
On February 12, 2002, the hearing officer issued his second Order (“Order 2") as required by
the remand order. Again, the hearing officer found and concluded that Appellant was not disabled
and was not entitled to Medicaid benefits under TEFRA. The second denial of Appellant’s claim is
now before the undersigned for appellate review.
STANDARD OF REVIEW
This case is before the ALJD as an appeal of an agency action. As such, the ALJD sits in an
appellate capacity under the Administrative Procedures Act, rather than as an independent finder of
fact. S.C. Code Ann. § 1-23-380(A)(6) governs the reasons an appellate body may reverse or modify
an agency decision. That section states:
The court 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 agency;
(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.
S.C. Code Ann. § 1-23-380(A)(6) (1986 and Supp. 1998).
A decision is supported by "substantial evidence" when the record as a whole allows
reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western Royal
Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state
has also interpreted the rule to mean that a decision will not be set aside simply because reasonable
minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). The fact that
the record, when considered as a whole, presents the possibility of drawing two inconsistent
conclusions from the evidence does not prevent the agency's finding from being supported by
substantial evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219,
467 S.E.2d 913 (1996).
In this case, Appellant argues that the hearing officer committed an error of law when he
concluded that Trenton’s OTC did not result in a “marked” limitation within the functional domain
of “Caring for Yourself.” The Department, on the other hand, argues that there is substantial
evidence in the record to support the hearing officer’s decision. Regardless of whether the substantial
evidence standard is satisfied, a decision affected by an error of law is nevertheless subject to reversal.
Errors of law are outside the substantial evidence rule, and if the agency commits an error of law the
court should reverse or remand the case. Stephen v. Avins Const. Co., 324 S.C. 334, 478 S.E.2d 74
(Ct. App. 1996).
DISCUSSION
The issue for determination in this case is whether the decision of the Department should be
reversed due to an error of law. Appellant contends the hearing officer ignored some relevant
provisions of the applicable regulations in making his decision.
To determine whether an child has a limitation which is functionally equivalent to a listed
impairment, one must refer to 20 C.F.R. § 416.926a. In general, an impairment must result in
“marked” limitations in two of six broad domains of functioning or an “extreme” limitation in one
domain. 20 C.F.R. § 416.926a(a) and (b)(1). A child has a “marked” limitation in a domain when
his or her impairments interfere seriously with the ability to independently initiate, sustain, or
complete activities. A child’s day-to-day functioning may be seriously limited when his or her
impairments limit only one activity. A “marked” limitation means a limitation that is “more than
moderate” but “less than extreme.” 20 C.F.R. § 416.926(e)(2)(i). With respect to the domain of
“caring for yourself,” the regulations provide in pertinent part:
Caring for yourself effectively . . . is characterized by a sense of independence and
competence.
* * *
Caring for yourself effectively means becoming increasingly independent in
making and following your own decisions. This entails relying on your own
abilities and skills, and displaying consistent judgment about the consequences of
caring for yourself. . . . Caring for yourself includes using your independence and
competence to meet your physical needs, such as feeding, dressing, toileting, and
bathing, appropriately for your age.
20 C.F.R. § 416.926a(k)(1)(i) and (ii) (emphasis added).
The regulations go on to give examples of impairments which are functionally equivalent in
severity to the listed impairments. 20 C.F.R. § 416.926(m) provides:
Examples of impairments that functionally equal the listings. The following are some
examples of impairments and limitations that functionally equal the listings. Findings
of equivalence based on the disabling functional limitations of a child’s impairment(s)
are not limited to the examples in this paragraph, because these examples do not
describe all possible effects of impairments that might be found to functionally equal
the listings. . . .
(6) Requirement for 24-hour-a-day supervision for medical (including
psychological) reasons.
(Emphasis added).
In addition, 20 C.F.R § 416.924a sets forth general considerations in determining disability
for children. Among those factors which are to be considered is “the amount of help or adaptations
you need, and the effects of structured or supportive settings.” 20 C.F.R. § 416.924a(b)(5). The
regulations further provide:
We will consider how independently you are able to function compared to other
children your age who do not have impairments. We will consider whether you need
help from other people. . . . For example, we may consider how much supervision you
need to keep from hurting yourself. . . . We recognize that children are often able to
do things and complete tasks when given help, but may not be able to do these things
by themselves. Therefore, we will consider how much extra help you need, what
special equipment or devices you use, and the medications you take that enable you
to participate in activities like other children your age who do not have impairments.
20 C.F.R. § 416.924a(b)(5)(ii).
Finally, the regulations also provide:
(iv) Structured or supportive settings.
(A) If you have a serious impairment(s), you may spend some or all of your time in
a structured or supportive setting, beyond what a child who does not have an
impairment typically needs.
(B) A structured or supportive setting may be your own home in which family
members . . . make adjustments to accommodate your impairment(s). . . .
(C) A structured or supportive setting may minimize signs and symptoms of your
impairment(s) and help to improve your functioning while you are in it, but your
signs, symptoms, and functional limitations may worsen outside this type of setting.
Therefore, we will consider your need for a structured setting and the degree of
limitation in functioning you have or would have outside the structured setting.
Even if you are able to function adequately in the structured or supportive
setting, we must consider how you function in other settings and whether you
would continue to function at an adequate level without the structured or
supportive setting.
(D) If you have a chronic impairment(s), you may have your activities structured in
such a way as to minimize stress and reduce the symptoms or signs of your
impairment(s). . . . We will consider whether you are more limited in your functioning
than your symptoms and signs would indicate.
(E) Therefore, if your symptoms and signs are controlled or reduced in a
structured setting, we will consider how well you are functioning in the setting
and the nature of the setting in which you are functioning (e.g., home or a
special class); the amount of help you need from your parents, teachers, or
others to function as well as you do; adjustments you make to structure your
environment; and how you would function without the structured or supportive
setting.
20 C.F.R. § 416.926a(b)(5)(iv) (emphasis added).
When the second decision of the hearing officer is reviewed with these directives of the
regulation in mind, it is readily apparent that the hearing officer committed an error of law. The
hearing officer completely failed to evaluate Trenton’s functioning in terms of how the help he
receives from his parents, doctor, and nutritionist enables him to function, and in terms of how well
he would continue to function without this extra help and outside the structured setting in which he
exists. The hearing officer’s findings with respect to “feeding” were limited to Trenton’s ability to
physically feed himself and did not take into account the highly structured regimen he must follow
at all times. The evidence indicated that Trenton’s OTC is controlled only because he follows a
tightly controlled regimen in which his doctor and nutritionist must work together to plan, in extreme
detail, every bit of food Trenton ingests, and his parents prepare the food to those specifications and
serve it to Trenton at specific times to keep his blood ammonia levels regulated. There is absolutely
no evidence that Trenton has the capability to independently maintain this regimen or even to make
any independent decisions about what food he will eat. The only evidence in the record which speaks
to the issue of how Trenton would function outside this highly supportive setting is the testimony
from his physician, who stated that the slightest deviation from his regimen would cause his blood
ammonia levels to rise and put him at risk for permanent brain damage or death. The evidence further
indicated that Trenton is able to maintain a semblance of normal life only because of the extraordinary
adjustments made by his family, with assistance from his physician and nutritionist.
Moreover, the regulations specifically contemplate a finding that an impairment is functionally
equivalent to the listed impairments where there is a requirement for 24 hour per day supervision for
medical reasons. In spite of the uncontradicted evidence from Trenton’s treating physician that he
requires 24 hour per day supervision with respect to his diet, the hearing officer found that Trenton’s
OTC was not functionally equivalent to the listed impairments.
CONCLUSION
For all the foregoing reasons, I find that the hearing officer erred in finding that Appellant had a “less
than marked limitation” in the area of “caring for yourself.” The hearing officer further committed
an error of law by failing to evaluate Appellant’s impairments in terms of how he would function
outside a highly structured or supportive setting, and by failing to find that Appellant’s impairment
was functionally equivalent to a listed impairment in light of the fact that Appellant requires 24 hour
per day supervision with respect to his diet. Accordingly, the decision of the hearing officer is hereby
reversed.
AND IT IS SO ORDERED.
____________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
April 14, 2003
h/o’s findings are overly simplistic–he seems to conclude that because trent is able to participate in
sports and to physically feed himself, he is not disabled. h/o failed to properly apply the law to the
facts of the case–he did not consider Trenton’s need for 24 hr per day supervision in his diet; failed
to evaluate the fact that Trenton functions in a “highly supportive or structured setting” and that
outside such a setting he would likely suffer brain damage; the 2 other cases are examples of what
happens when child is not supported enough by family. By failing to evaluate Trenton’s claim
according to these regulations h/o committed an error of law and therefore his decision must be
reversed.
Regimen of Petitioner-
Petitioner is enrolled in the special education program at Foster Park Elementary school in
Union County, South Carolina. He participates in speech therapy and reading recovery programs.
Also, an individual is with him daily (shadows him) and sits beside him in his classes, offering
assistance to him in focusing on his course work as well as during his other school activities. Also,
Petitioner takes two medications and formulas each day at specific times and eats a lunch which is
specially prepared by his mother. After school, he is able to take part in normal activities, which
includes playing baseball and football. |
