Amy Sherman-Oliver v. Public Employees' Retirement System of Mississippi; ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-SA-01183-COA
AMY SHERMAN-OLIVER APPELLANT
v.
PUBLIC EMPLOYEES’ RETIREMENT SYSTEM APPELLEE
OF MISSISSIPPI
DATE OF JUDGMENT: 07/27/2018
TRIAL JUDGE: HON. JOSEPH ANTHONY SCLAFANI
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: GEORGE S. LUTER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SAMUEL MARTIN MILLETTE
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION: REVERSED AND RENDERED - 02/11/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLTON, P.J., FOR THE COURT:
¶1. Amy Sherman-Oliver applied for non-duty-related disability retirement benefits with
the Public Employees’ Retirement System of Mississippi (PERS). PERS denied Sherman-
Oliver’s application for benefits after determining that she failed to present sufficient
objective medical evidence to support her claim. Sherman-Oliver then appealed to the Hinds
County Circuit Court, which affirmed PERS’s decision.
¶2. Sherman-Oliver now appeals, arguing that PERS’s decision is not supported by
substantial evidence and that her right to due process had been violated because the
Independent Medical Examiner requested by PERS, Dr. David Collipp, did not examine her.
¶3. After our review, we find PERS’s decision that Sherman-Oliver was not disabled is
not supported by substantial evidence. We therefore reverse and render the circuit court’s
judgment affirming PERS’s order denying non-duty-related disability retirement benefits.
FACTS
¶4. Sherman-Oliver was employed as an Administrative Assistant/Purchasing Agent for
Jackson-George Regional Library System for approximately eleven years until she resigned
from her job in August 2012. In September 2012, Sherman-Oliver applied for
non-duty-related disability retirement benefits with PERS and indicated that she was unable
to perform her job duties due to cervical dystonia1 and depression.
¶5. On May 30, 2013, the PERS Medical Board denied Sherman-Oliver’s application for
disability benefits after finding that she failed to provide sufficient objective medical
evidence to support her claim. Sherman-Oliver appealed to the PERS Disability Appeals
Committee (Committee). After a hearing on the matter in October 2013, the Committee
recommended that the PERS Board of Trustees (the Board) deny Sherman-Oliver’s claim for
non-duty-related disability retirement benefits.
¶6. The Board adopted the recommendation of the Committee and entered an order
denying benefits. Sherman-Oliver then appealed to the circuit court. Before the circuit court
could hear the matter, the court reporter present at the prior hearing died, and a transcript of
1
Sherman-Oliver represents in her brief to this Court that according to the Mayo
Clinic website, cervical dystonia, also called spasmodic torticollis, is a painful condition in
which a person’s neck muscles contract involuntarily, causing one’s head to twist or turn to
one side. The record on appeal suggests that cervical dystonia can also cause a person’s
head to uncontrollably tilt forward or backward. Throughout the record, the condition is
also referred to as “spasmodic torticollis.”
2
the hearing could not be found. The circuit court entered an agreed order remanding the
matter to PERS for a hearing de novo.
¶7. The Committee held this subsequent hearing on September 19, 2016. At the hearing,
Sherman-Oliver testified that she was the purchasing agent for eight library branches. As for
her job requirements, Sherman-Oliver stated that weight-wise, the most she was required to
lift were boxes of copier paper on occasion. She estimated these boxes weighed about
twenty pounds. Sherman-Oliver testified that she left her job when she started suffering
headaches, pulling in her neck, and experiencing trouble sitting in a chair. She also said she
could not handle the anxiety. Sherman-Oliver stated that while working, she suffered
headaches every day and rated the pain “around an eight or a nine” on a scale of one to ten.
¶8. Sherman-Oliver also described symptoms of her medical diagnosis of cervical
dystonia. She testified that her neck problems began in 2003 and cause her to suffer
headaches, as well as shoulder and neck pain. She has been treated with Botox injections
every three months since 2008. The most recent Botox shot was in July 2016.
Sherman-Oliver stated that it usually takes about two weeks before she sees any relief from
the Botox treatment and that she receives varying amounts of relief from the injections. She
stated that she occasionally takes Morphine for pain. Sherman-Oliver testified that she
suffers from depression and anxiety.
¶9. Sherman-Oliver testified that since she is no longer working, she typically gets out of
bed between 9:00 and 10:00 a.m. She eats breakfast and then sits in her recliner, watches
television, and uses her laptop during the day. She said she might do some cooking, light
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housework, mopping, or laundry. She testified that some days she does not leave the house,
although she does go to church on Sundays.
¶10. Sherman-Oliver’s employer filled out a PERS Form 6B “Employer’s Certification of
Job Requirements.” Carol Hewlett, the director of the library system, filled out the form on
behalf of the Jackson-George Regional Library System. When asked, “In your opinion, can
the employee perform his/her job?” Hewlett checked “no” and explained that in a note
written on April 25, 2012, Sherman-Oliver’s doctor stated that Sherman-Oliver could not
perform all clerical duties due to severe headaches and neck pain due to cervical dystonia.
Hewlett marked on the form that Sherman-Oliver does not appear to be motivated toward
continuing her current employment. Hewlett confirmed that the library system had provided
Sherman-Oliver with accommodations, including an ergonomic chair and any medical leave
as needed, including twelve weeks of leave time under the Family and Medical Leave Act
of 1993, 29 U.S.C. §§ 2601–2654 (2018). Hewlett also stated that Sherman-Oliver was
allowed to change position from sitting to standing, and vice versa, as often as needed while
performing her job.
¶11. The Committee’s order reflects that it reviewed medical evidence submitted by Dr.
Terry Millette, a neurosurgeon and Sherman-Oliver’s treating physician. The Committee
also reviewed reports from the following physicians: (1) Dr. Sera Cox, a psychiatrist who
treated Sherman-Oliver for depression and generalized anxiety; (2) Dr. Sheree Starr,
Sherman-Oliver’s treating psychologist; (3) Dr. John Montgomery, a psychiatrist who
examined Sherman-Oliver at the request of PERS; and (4) Dr. Collipp, a physical medicine
4
specialist who examined Sherman-Oliver at the request of PERS.
¶12. In January 2013, Dr. Millete completed a PERS “DSBL 7 Form (Statement of
Examining Physician).” Dr. Millette stated that Sherman-Oliver’s primary diagnosis was
spasmodic torticollis with a secondary diagnosis of headaches and depression. In the
sections for “Symptoms and Objective Findings,” Dr. Millette listed the following: range of
motion diminished, head tilt, and muscular swelling. According to Dr. Millette,
Sherman-Oliver was disabled, and she had been disabled as of May 11, 2012. Dr. Millette
opined that Sherman-Oliver had reached maximum medical improvement. He indicated that
Sherman-Oliver should avoid prolonged sedentary work because it would increase her neck
pain and headaches and that she should not lift more than twenty pounds.
¶13. As for Sherman-Oliver’s anxiety, the record shows that Dr. Sera Cox, a psychiatrist,
treated Sherman-Oliver for depression and generalized anxiety as early as 2009 and last saw
her in 2012. Dr. Cox referred Sherman-Oliver to Dr. Sheree Starr for psychotherapy.
¶14. Sherman-Oliver’s psychologist, Dr. Sheree Starr, also completed a PERS DSBL 7
Form in January 2013. Dr. Starr listed Sherman-Oliver’s primary diagnosis as generalized
anxiety disorder with her second diagnoses as recurrent major-depressive disorder that was
in remission, and a preexisting dystonic disorder. Dr. Starr noted that Dr. Millette had given
Sherman-Oliver restrictions due to her cervical dystonia, but she stated that Sherman-Oliver
was not psychiatrically disabled. According to Dr. Starr, Sherman-Oliver’s prognosis for
recovery was fair to good, and she estimated that Sherman-Oliver would reach maximum
medical improvement by December 2013.
5
¶15. In April 2013, Sherman-Oliver underwent an Independent Medical Examination
(IME) at PERS’s request. In a report summarizing the examination, Dr. Collipp indicated
that he was not qualified to give an opinion as to Sherman-Oliver’s psychological issues.
However, as to Sherman-Oliver’s spastic torticollis, the report stated that it was “not evident”
during the examination. Dr. Collipp stated that Sherman-Oliver does have “multiple trigger
points in her cervical region,” but he found that her range of motion was intact and
symmetrical. According to the report, Sherman-Oliver was capable of rarely lifting up to
thirty-five pounds, but not fifty pounds. It noted that Sherman-Oliver had “some room for
physical improvement,” but she was not likely to improve to lifting fifty pounds. The written
report signed by Dr. Collipp concluded that “[o]ther aspects of [Sherman-Oliver’s] job as
noted are within her functional capacity.”
¶16. Subsequently, PERS sent a letter to Sherman-Oliver’s employer, asking if Sherman-
Oliver could have been accommodated in rarely lifting thirty-five pounds, but not fifty
pounds. Cynthia Winters, the Personnel and Reports Manager, replied that such an
accommodation could have been made.
¶17. In November 2013, Dr. John Montgomery, a psychiatrist, conducted an Independent
Psychiatric Examination at PERS’s request. During the examination, Sherman-Oliver
reported that she experienced symptoms of depression most of her life but that she did not
have symptoms of cervical dystonia until 2003. According to Sherman-Oliver, she began
having problems at work in 2005. And when she resigned from her job in 2012, she applied
for other county and state-level jobs but was not hired. Sherman-Oliver informed Dr.
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Montgomery that as a result of increasing stress and physical discomfort, she applied for
disability benefits. In his report, Dr. Montgomery noted that Sherman-Oliver had described
problems with her former coworkers, and she was “preoccupied with the social and political
climate of former workplace[.]”
¶18. When Dr. Montgomery asked Sherman-Oliver to describe a typical day, Sherman-
Oliver stated that she would wake up and watch television or use the computer. Then she
would eat breakfast and do light housework. Afterward, she would return to the television
or computer with breaks for lunch and dinner. Sherman-Oliver also told Dr. Montgomery
that she did not have any driving restrictions and was involved in her church.
¶19. In his report, Dr. Montgomery noted that at the time of the IME, Sherman-Oliver was
experiencing mild-to-moderate symptoms of depression and moderate levels of generalized
anxiety. As a result, he expected her to have only mild difficulty handling the stresses and
demands of a workplace environment. However, Dr. Montgomery noted that she held on to
“a great deal of animosity and jealousy towards [her former] coworkers and supervisors” and
may do better in another workplace. Dr. Montgomery concluded that Sherman-Oliver’s
prognosis from a psychiatric standpoint was fair.
¶20. In December 2013, Sherman-Oliver sent a letter to PERS, which contained additional
information for PERS’s consideration. Among other things, Sherman-Oliver wrote that Dr.
Collipp did not examine her during the IME. Rather, she was examined by Dr. Eric
Amundson. Sherman-Oliver also claimed that she tried to change jobs before leaving the
library system, but no one would hire her.
7
¶21. The transcript reflects that at the hearing, Sherman-Oliver’s attorney asked the
Committee to give “special review to the treating physician, Dr. Millette.” However,
Sherman-Oliver’s attorney did not raise any argument that Dr. Collipp’s findings should have
been disregarded.
¶22. The Committee entered its “Proposed Statement of Facts, Conclusion of Law, and
Recommendation,” recommending that the Board deny Sherman-Oliver’s claim for non-duty-
realted disability retirement benefits after determining that “there is insufficient evidence to
support a finding that Ms. Sherman-Oliver is likely permanently disabled from performing
her job.” The Committee explained that it “is persuaded by the objective findings and
opinions of Dr. Collipp, Dr. Montgomery, and Dr. Starr that Ms. Sherman-Oliver has the
physical ability to continue to perform her job and the mental ability to continue working.”
The Committee stated that out of all five doctors, Sherman-Oliver’s treating physician, Dr.
Millette, “is the only one giving an opinion that Ms. Sherman-Oliver is disabled.” However,
the Committee held that the medical evidence produced by Sherman-Oliver was insufficient
to support her claim that she is disabled. The Committee explained that “[w]e use as support
for this conclusion, the medical expertise of this Committee, the objective evidence contained
in the record, and the Independent Medical Evaluations, including both physical and mental
examinations and evaluations.”
¶23. The Committee also noted that Sherman-Oliver had been approved for Social Security
disability benefits. However, the Committee stated that “[w]hile this Committee, which
includes two board certified physicians, takes the Social Security Administration’s decision
8
into consideration, it is not bound by that determination.”
¶24. In an order signed October 25, 2016, the Board approved and adopted the
recommendation of the Committee and denied Sherman-Oliver’s request for non-duty-related
disability retirement benefits. In November 2016, Sherman-Oliver appealed to the circuit
court, which affirmed PERS’s denial of Sherman-Oliver’s application for benefits. The
circuit court specifically found that PERS’s decision was supported by substantial evidence
and that Sherman-Oliver waived her claim that her right to due process had been violated.
This appeal followed.
DISCUSSION
I. Substantial Evidence
¶25. On appeal, “[t]he issue before this Court is not whether there was evidence in support
of [Sherman-Oliver’s] disability, but whether there was substantial evidence to support the
finding of [PERS].” Doyle v. Pub. Emps’ Ret. Sys., 808 So. 2d 902, 905 (¶8) (Miss. 2002).
When reviewing the decision of an administrative agency, we recognize that “[a]n agency’s
conclusions must remain undisturbed unless the agency’s order: 1) is not supported by
substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted
to the agency, or 4) violates one’s constitutional rights.” Pub. Emps’ Ret. Sys. v. Walker, 126
So. 3d 892, 894-95 (¶5) (Miss. 2013). This Court has defined “substantial evidence” as
“such relevant evidence as reasonable minds might accept as adequate to support a
conclusion.” Davidson v. Pub. Emps’ Ret. Sys., 219 So. 3d 577, 581 (¶15) (Miss. Ct. App.
2017) (internal quotation marks omitted) (Knight v. Pub. Emps’ Ret. Sys., 108 So. 3d 912,
9
915 (¶13) (Miss. 2012). “To be substantial, the evidence must be something more than a
mere scintilla or suspicion.” Knight, 108 So. 3d at 915 (¶13). Furthermore, “[t]his Court
may neither substitute its own judgment for that of the agency which rendered the decision
nor reweigh the facts of the case.” Walker, 126 So. 3d at 895 (¶5). “A rebuttable
presumption exists in favor of PERS’s decision, and the claimant has the burden of proving
the contrary.” Davidson, 219 So. 3d at 581 (¶15).
¶26. The Committee’s order reflects that it reviewed medical evidence submitted by Dr.
Millette, a neurosurgeon and Sherman-Oliver’s treating physician. Dr. Millette began seeing
Sherman-Oliver in 2007. The Committee found that Dr. Millette gave Sherman-Oliver a
primary diagnosis of spasmodic torticollis and secondary diagnosis of headaches. Dr.
Millette restricted Sherman-Oliver to no lifting over twenty pounds, and he listed a
permanent partial impairment of 5-10% to the cervical spine. Dr. Millette opined that she
has reached maximum medical improvement. The Committee noted that Dr. Millette
completed forms indicating that Sherman-Oliver should avoid prolonged sedentary work due
to this activity increasing Sherman-Oliver’s neck pain and headaches. Notably, the
Committee recognized that Dr. Millette concluded Sherman-Oliver was disabled and unable
to return to work beginning May 11, 2012, with no return-to-work date offered. In fact, Dr.
Millette stated that Sherman-Oliver is “not to return” to work.
¶27. However, the Committee stated that Dr. Millette’s “office notes and the objective
testing do not support his subjective statement” that Sherman-Oliver is disabled. The
Committee also stated that although Dr. Millette listed Sherman-Oliver’s only restriction as
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no lifting over twenty pounds, Sherman-Oliver testified that boxes of copier paper were the
only items at work she lifted that weighed this much. The Committee determined that “[t]his
restriction could easily be accommodated by simply removing the reams of paper from the
boxes and carrying them individually.” The Committee found that despite Dr. Millette’s
statement that Sherman-Oliver should avoid prolonged sedentary work because it increased
her neck pain and headaches, Sherman-Oliver testified that she spent most of her days at
home, sitting in her recliner using her laptop computer. The Committee stated, “It appears
that her sedentary activity at home is very similar to the duties of her job. Both are sitting
tasks using a keyboard.”
¶28. The Committee additionally noted that “Dr. Collipp reviewed and considered Dr.
Millette’s report of disability for headaches, spastic torticollis, and neck pain but he reached
a different conclusion”: Sherman-Oliver was physically capable of rarely lifting up to
thirty-five pounds, but not fifty pounds, and she had the functional capabilities to perform
her job. However, after reviewing Dr. Collipp’s report, we find nothing to contradict Dr.
Millette’s disability claim or diagnosis of spastic torticollis. Rather, regarding Sherman-
Oliver’s physical impairments, Dr. Collipp stated that Sherman-Oliver “suffers with reported
spastic torticollis, not evident on today’s examination. She has multiple trigger points in her
cervical region, but her [range of motion] is intact and symmetrical. No wry neck noted.”
Dr. Collipp found that Sherman-Oliver was capable of lifting up to thirty-five pounds rarely
and that other aspects of her job were within her functional capacity.
¶29. The Committee also reviewed reports from psychiatrists Dr. Cox and Dr. Montgomery
11
and psychologist Dr. Starr. With respect to Sherman-Oliver’s depression and anxiety, the
Committee found that Dr. Montgomery agreed with Dr. Starr and Dr. Cox that Sherman-
Oliver’s “cognitive functioning is unimpaired and she is not psychiatrically disabled.” The
Committee explained that “[t]hese opinions are persuasive for this Committee.” The
Committee stated that it placed “significant weight on the fact that Dr. Starr, the . . . treating
psychologist, has given Ms. Sherman-Oliver no restrictions independent of the opinion of Dr.
Millette.” The Committee noted that the restrictions appear to be compatible with Ms.
Sherman-Oliver’s job duties and that her employer stated that accommodations could be
made for her.
¶30. The Committee ultimately determined that Sherman-Oliver is not disabled for
purposes of PERS and that the medical evidence she produced was insufficient to support
her claim that she is disabled. The Committee stated that it was “persuaded by the objective
findings and opinions of Dr. Collipp, Dr. Montgomery, and Dr. Starr that Ms.
Sherman-Oliver has the physical ability to continue to perform her job and the mental ability
to continue working.” The Committee found that out of the five doctors that examined and
evaluated Sherman-Oliver, “Dr. Millette, [her] treating physician, is the only one giving an
opinion that Ms. Sherman-Oliver is disabled.”
¶31. In Howard v. Public Employees’ Retirement System of Mississippi, 971 So. 2d 622,
627-28 (¶15) (Miss. Ct. App. 2007), PERS denied Sheila Howard’s application for
permanent disability benefits after finding that Howard’s claim lacked sufficient objective
medical evidence. On appeal, this Court found PERS’s decision to deny benefits arbitrary
12
and capricious, explaining that Howard’s treating physicians provided objective diagnoses
of fibromyalgia and that “not one of the many doctors who examined Howard, including the
independent medical examiner, Dr. Jones, contradicted Dr. Blanchard’s diagnosis that
Howard had a permanently debilitating case of fibromyalgia[.]” Id. at 628 (¶15). This Court
recognized that it “would be required to give deference to the PERS decision if medical
evidence had been presented contradicting Howard’s disability claim, and PERS weighing
the evidence as a fact finder had denied benefits”; however, “[t]hat is not what happened
here.” Id. at (¶16). Rather, “[t]he only medical evidence presented in this case was offered
in support of Howard’s claims, and that evidence went unrebutted by even the independent
medical examiner appointed by PERS to examine Howard.” Id. This Court also “note[d]
that Howard has been determined to be disabled by the Social Security Administration
(SSA). While PERS is not bound by the determination of the SSA that a person is disabled,
such a determination may be considered as further evidence in support of disability.” Id. at
(¶15).
¶32. As stated, on appeal, this Court is tasked with determining whether there was
substantial evidence to support PERS’s finding that Sherman-Oliver was not disabled.
Doyle, 808 So. 2d at 905 (¶8). This Court has defined “substantial evidence” as “such
relevant evidence as reasonable minds might accept as adequate to support a conclusion.”
Davidson, 219 So. 3d at 581 (¶15). “To be substantial, the evidence must be something more
than a mere scintilla or suspicion.” Knight, 108 So. 3d at 915 (¶13).
¶33. After reviewing the record before us, and for the reasons set forth in this opinion, we
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determine PERS’s finding that Sherman-Oliver was not disabled and its decision to deny
Sherman-Oliver’s application for non-duty-related disability retirement benefits were not
supported by substantial evidence and are therefore arbitrary and capricious. See Knight, 108
So. 3d at 916 (¶13) (“[I]f an agency’s decision is not based on substantial evidence, it
necessarily follows that the decision is arbitrary and capricious.”); Pub. Emps’ Ret. Sys. v.
Marquez, 774 So. 2d 421, 427 (¶20) (Miss. 2000) (“When reviewing an administrative
agency’s decision, the circuit court must look at the full record before it in deciding whether
the agency’s findings were supported by substantial evidence.”). Sherman-Oliver’s treating
physician diagnosed her as physically disabled due to a diagnosis of cervical dystonia and
headaches. PERS determined that Dr. Millette’s office notes and objective testing failed to
support his “subjective” statement, but PERS failed to provide substantial evidence to
support its conclusion. In McGowan v. Mississippi State Oil & Gas Board, 604 So. 2d 312,
313 (Miss. 1992), the Mississippi Supreme Court vacated the orders of the State Oil and Gas
Board after finding that “[t]he Board has not favored us with minimally adequate findings
on these points, much less an explanation [of] how it has evaluated and balanced the
competing interests and decided which should rule the day.” The supreme court stated that
it is “imperative that administrators say at least minimally why they do what they do so
someone can see whether it be arbitrary or capricious.” Id. at 322. Furthermore, no other
physician who examined Sherman-Oliver disputed Dr. Millette’s diagnosis of spasmodic
torticollis and headache.
¶34. Because we find that the Board’s decision that Sherman-Oliver was not disabled is
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not supported by substantial evidence, we reverse and render the circuit court’s judgment
affirming PERS’s order denying non-duty-related disability retirement benefits.
II. Right to Due Process
¶35. Sherman-Oliver next claims that her right to due process was violated because
although Dr. Collipp wrote a report regarding her IME, Dr. Collipp himself did not actually
examine her.
¶36. This Court has held that “[a]dministrative proceedings are to be ‘conducted in a fair
and impartial manner, free from any just suspicion or prejudice, unfairness, fraud, or
oppression.’” Alston v. Miss. Dep’t of Emp’t Security, 247 So. 3d 303, 311 (¶29) (Miss. Ct.
App. 2017) (quoting Miss. State Bd. of Health v. Johnson, 197 Miss. 417, 19 So. 2d 445, 447
(1944)). “[I]t is well established that formal rules of practice, procedure, and evidence are
more relaxed in proceedings before administrative agencies than in courts of law; however,
‘due process always stands as a constitutionally grounded procedural safety net in
administrative hearings.’” Id. (quoting McGowan v. Miss. State Oil & Gas Bd., 604 So. 2d
312, 318 (Miss. 1992)). “The minimum due-process requirement an administrative board
must afford parties is notice and an opportunity to be heard.” Id. (citing Booth v. Miss. Emp’t
Sec. Comm’n, 588 So. 2d 422, 428 (Miss. 1991)).
¶37. The record reflects that although Sherman-Oliver sent a letter to PERS alleging that
Dr. Collipp did not examine her, Sherman-Oliver’s attorney did not object to Dr. Collipp’s
findings being included in the record, nor did he raise any argument that Dr. Collipp’s
findings should be disregarded for any reason. Therefore, we find that Sherman-Oliver
15
waived her due process claim. See Haggerty v. Foster, 838 So. 2d 948, 954 (¶8) (Miss.
2002) (“In order to preserve an objection for appeal, an attorney must make a
contemporaneous objection. . . . Failure to [do so] . . . constitutes a waiver of the argument
on appeal.”). Furthermore, Sherman-Oliver does not assert that the IME did not take place,
nor does she challenge the examination itself. She merely asserts that another doctor in the
same office performed the examination. As discussed, Sherman-Oliver waived this issue by
not raising an objection.
¶38. REVERSED AND RENDERED.
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ.,
CONCUR. BARNES, C.J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. GREENLEE, J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY C.
WILSON, J. J. WILSON, P.J., NOT PARTICIPATING.
GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:
¶39. I agree with the majority’s determination that Sherman-Oliver waived her due process
claim. However, I disagree with the majority’s determination that substantial evidence does
not support PERS’s decision that Sherman-Oliver was not disabled. Furthermore, because
the majority’s determination may only be reached by reweighing the evidence, I must dissent
in part.
¶40. This Court’s review of PERS’s “disability determinations is limited.” Davidson v.
Pub. Emps.’ Ret. Sys., 219 So. 3d 577, 581 (¶15) (Miss. Ct. App. 2017) (internal quotation
marks omitted). A PERS determination “must remain undisturbed unless [it]: (1) is not
supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or
16
power granted to the agency, or (4) violates the claimant’s constitutional rights.” Id. (quoting
Pub. Emps.’ Ret. Sys. v. Howard, 905 So. 2d 1279, 1284 (¶13) (Miss. 2005)). “‘Substantial
evidence’ has been defined by this Court as ‘such relevant evidence as reasonable minds
might accept as adequate to support a conclusion.’” Id. (quoting Knight v. Pub. Emps.’ Ret.
Sys., 108 So. 3d 912, 915 (¶13) (Miss. 2012)).
¶41. This Court has held that “[a] rebuttable presumption exists in favor of PERS’s
decision, and the claimant has the burden of proving the contrary.” Id. (quoting Dearman
v. Pub. Emps.’ Ret. Sys., 205 So. 3d 1100, 1103 (¶10) (Miss. Ct. App. 2016)). Furthermore,
this Court is “obligated to afford the agency’s determinations of credibility in the fact-finding
process substantial deference.” Id. (quoting Pub. Emps.’ Ret. Sys. v. Cobb, 839 So. 2d 605,
609 (¶12) (Miss. Ct. App. 2003)). This Court has stated that it “will not ‘re-evaluate the
evidence’ or ‘make . . . determination[s] of the trustworthiness of some particular
testimony.’” Id.
¶42. With respect to Sherman-Oliver’s cervical dystonia, the Committee noted the findings
of Dr. Millette: Sherman-Oliver was disabled, she should avoid lifting more than twenty
pounds, and she should avoid prolonged sedentary work. However, the Committee also
noted that Dr. Collipp reached a different conclusion: Sherman-Oliver was physically capable
of rarely lifting up to thirty-five pounds, but not fifty pounds, and that she had the functional
capacity to perform other aspects of her job. The Committee recalled that Sherman-Oliver
had testified that the most she was required to lift was a box of copier paper, which could be
lessened by removing the individual reams of paper. The Committee also noted Sherman-
17
Oliver’s employer’s willingness to accommodate her. The Committee found that Sherman-
Oliver’s job was a “desk job,” which required “very limited activity.” And although Dr.
Millette told Sherman-Oliver to avoid prolonged sedentary work, she still spends most of her
days sitting and using a computer.
¶43. With respect to Sherman-Oliver’s depression and anxiety, the Committee noted Dr.
Starr’s findings. That is, although Sherman-Oliver had generalized anxiety, major depressive
disorder, and preexisting dystonic disorder, she was not psychiatrically disabled. Likewise,
Dr. Montgomery found mild-to-moderate symptoms of depression and moderate levels of
generalized anxiety. And Dr. Montgomery found that Sherman-Oliver would have only mild
difficulty handling the stresses and demands of a workplace environment.
¶44. Sherman-Oliver argues that PERS’s decision is not based on “any medical evidence”
and “totally ignore[s] the reasoned opinions of Sherman-Oliver’s longtime treating
neurologist Dr. Terry Millette[.]” However, a review of the record shows that PERS
considered the opinions of several doctors, including Dr. Millette. “[W]hen the relevant
evidence and opinions of physicians conflict, it is the responsibility of PERS—through its
medical board, [the Committee], and board of trustees—to sort through the conflicting
evidence and to determine which is more credible and persuasive.” Davidson, 219 So. 3d
at 582 (¶18). This Court does not “second-guess or reevaluate such determinations when,
as in this case, they are supported by substantial credible evidence.” Id.
¶45. The majority finds, “[A]fter reviewing Dr. Collipp’s report, we find nothing to
contradict Dr. Millette’s disability claim . . . .” However, Dr. Collipp’s conclusion that
18
Sherman-Oliver was capable of rarely lifting up to thirty-five pounds and had the functional
capacity to perform other aspects of her job contradicts any finding that there was no medical
evidence or that Sherman-Oliver was disabled under the statute. The majority also finds that
“no other physician who examined Sherman-Oliver disputed Dr. Millette’s diagnosis of
spasmodic torticollis and headache.” However, the relevant question is “whether there was
substantial evidence to support the finding of PERS that she is capable of returning to her
prior employment.” Id. (internal quotation mark omitted) (quoting Pub. Emps’ Ret. Sys. v.
Dean, 983 So. 2d 335, 340 (¶17) (Miss. Ct. App. 2008)). That evidence exists in the record.
¶46. Sherman-Oliver argues that her employer’s certification that she was unable to
perform her job was evidence in support of her claim for disability. In 2012, Sherman-
Oliver’s employer completed a PERS Form 6B titled “Employer’s Certification of Job
Requirements.” Sherman-Oliver’s employer indicated that she could not perform her job.
However, her employer explained on the form that Sherman-Oliver’s “[d]octor stated . . . that
[she] could not perform ‘all clerical duties due to severe headaches and neck pain due to
cervical dystonia.’” It is clear that the employer’s opinion was dependent on Dr. Millette’s
opinion.
¶47. Finally, Sherman-Oliver argues that she was approved for Social Security benefits,
which “is further evidence in support of [her] claim of disability.” Though it may be
considered, “it is well settled that ‘PERS is not bound by any finding of the Social Security
Administration.’” Id. at 583 (¶20) (quoting Pub. Emps.’ Ret. Sys. v. Stamps, 898 So. 2d 664,
675 (¶35) (Miss. 2005)). Furthermore, the criteria for determining disability under the PERS
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statute varies greatly from the criteria for Social Security. Pub. Emps.’ Ret. Sys. v. Dishmon,
797 So. 2d 888, 895 (¶29) (Miss. 2001).
¶48. Considering our limited standard of review, the deference that must be afforded to the
agency, and the substantial evidence that was presented in support of PERS’s finding that
Sherman-Oliver was not disabled, I believe this Court should affirm.
C. WILSON, J., JOINS THIS OPINION.
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