TAMBRA LESTER v. DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent-Respondent. , 2014 Mo. App. LEXIS 40 ( 2014 )

TAMBRA LESTER, )
)
Petitioner-Appellant, )
)
v. ) No. SD32457
) Filed: 1-16-14
DEPARTMENT OF SOCIAL SERVICES, )
FAMILY SUPPORT DIVISION, )
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF IRON COUNTY
Honorable Kelly W. Parker, Circuit Judge
AFFIRMED
Tambra Lester (Claimant) appeals from a judgment entered by the Circuit Court
of Iron County affirming a decision and order from the Director of the Missouri
Department of Social Services, Family Support Division (the Director). The Director’s
decision affirmed the denial of Claimant’s application for MO HealthNet for the Aged,
Blind and Disabled (MHABD) benefits, based on a determination that Claimant was not
permanently and totally disabled.
On appeal, Claimant contends the trial court erred in affirming the Director’s
denial of benefits because: (1) that decision was not based in law, in that the Director
failed to properly apply certain federal regulations; and (2) that decision was not
supported by substantial evidence and was arbitrary, capricious and unreasonable, in that
the Director failed to accord proper weight to medical opinion evidence. Finding no
merit in either contention, we affirm.
Standard of Review
“On appeal, we review the decision of the administrative agency, not the
judgment of the circuit court.” Cruz v. MO. Dept. of Social Services, 386 S.W.3d 899,
902 (Mo. App. 2012). Section 536.140.2 limits our review to determining whether the
administrative agency’s decision:
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole
record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
Id.1 This Court examines the whole record to determine whether there is sufficient
evidence to support the decision. Dambach v. Department of Social Services, Family
Support Div., 313 S.W.3d 188, 191 (Mo. App. 2010). “We must examine the record in
the light most favorable to the Division’s decision and disregard evidence that might
support findings different from those of the Division.” Id. In addition, “[t]he
1
All references to statutes are to RSMo Cum. Supp. (2010) unless otherwise
specified.
2
determination of the credibility of witnesses is within the province of the director.”
Chrismer v. Missouri State Div. of Family Services, 816 S.W.2d 696, 700 (Mo. App.
1991); Rader v. Missouri State Div. of Family Services, 810 S.W.2d 346, 348 (Mo. App.
1991). We will not substitute our judgment for that of the Director on factual matters, but
questions of law are matters for the independent judgment of this Court. Cruz, 386
S.W.3d at 902; see Dambach, 313 S.W.3d at 191. “If the Division’s decision is
supported by substantial and competent evidence found in the record, then the Division’s
decision should be affirmed.” Garrett v. Missouri Dept. of Social Services, 57 S.W.3d
916, 919 (Mo. App. 2001). We have summarized the relevant facts in accordance with
the foregoing principles.
Factual and Procedural Background
In March 2010, Claimant was 51 years of age. She injured her ankle while
working as a housekeeper at a motel. Dr. Craig Ruble diagnosed Claimant’s injury as a
distal fibular fracture and treated Claimant for several months. Her treatment included
frequent ice and elevation, anti-inflammatory medication and physical therapy. The
doctor noted continued improvement and progress throughout Claimant’s treatment.
In April 2010, while recovering from the ankle injury, Claimant complained to
Dr. Ruble of mid-to-low back pain. Claimant reported the pain as on-and-off aching that
was occasionally sharp and severe. Dr. Ruble diagnosed a lumbar strain after
examination and x-rays revealed no abnormalities, fractures, dislocations or significant
degeneration of the lumbar spine. The doctor recommended Claimant apply ice and/or
heat frequently to her back and continue anti-inflammatory medication. He also ordered
one physical therapy visit to set up a home exercise program for Claimant’s back.
3
In May 2010, Claimant followed up with her chiropractor, Dr. Steven McAdams.
He diagnosed Claimant as having a sprain or strain of the lumbar spine with associated
subluxations and muscle spasms.
On May 10, 2010, after completion of Claimant’s prescribed physical therapy
sessions for her ankle and continued improvement, Dr. Ruble released Claimant to work
an eight-hour day with the assistance of a boot, with weight bearing as tolerated.
Although instances of ankle swelling or soreness were noted in follow-up appointments
in May and June, Claimant’s range of motion, strength, stability and pain levels
continued to improve. Dr. Ruble prescribed at-home daily exercises, ice and elevation,
compression hosiery and anti-inflammatory medication. Throughout these follow-up
appointments, Dr. Ruble consistently reaffirmed that Claimant was able to work full duty
with the assistance of a boot or ankle brace.
Thereafter, Claimant returned to work, but only for a short time. In June 2010,
Claimant stopped working. According to her, she was not able to work because the
demands of the job caused her right ankle and calf to swell.
On July 19, 2010, at Claimant’s final appointment with Dr. Ruble, the doctor
noted good range of motion of her ankle, no tenderness, and good strength and stability.
Although he mentioned in his notes that Claimant was no longer employed, he
maintained his recommendation that “[a]s far as work, she is obviously still full duty.”
He went on to state that Claimant is “at maximum medical improvement” and released
Claimant to her own care.
In January 2011, Claimant applied for MHABD benefits, claiming that she was
permanently and totally disabled. Claimant listed her disabling physical symptoms and
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problems as “pain & stiffness in back, neck & ankle, headaches, limited mobility[.]” She
reported “depression” as her mental health symptom and problem. Claimant submitted
her application and medical information on her complaints to the Medical Review Team
(the Team). On March 30, 2011, the Team determined that Claimant was ineligible for
MHABD benefits because she was not permanently and totally disabled. Claimant then
requested an administrative hearing.
On June 1, 2011, a hearing officer held a telephone hearing, at which several
medical records were introduced into evidence. These records included a one-page report
from Claimant’s chiropractor, Dr. McAdams; and Dr. Ruble’s records, which contained
detailed examination summaries, imaging reports and physical therapy notes. The
medical evidence also included records from Claimant’s primary care physician, Dr.
Stephanie Moniz, who had treated Claimant for low back pain on September 14, 2010
and February 8, 2011.
On the latter date, Dr. Moniz also completed residual functional capacity (RFC)
questionnaires concerning Claimant’s physical and mental capabilities. Based upon
Claimant’s responses to the questions, Dr. Moniz concluded that: (1) Claimant could
only sit or stand less than two hours in an eight-hour work day; (2) she would be
restricted in bending, twisting or stooping; and (3) she could only occasionally lift less
than 10 pounds. The doctor also opined that Claimant would be frequently limited in her
ability to focus on and handle stress related to her work tasks. Dr. Moniz characterized
Claimant’s ability to return to work as “poor.”
During the hearing, Claimant testified about her physical and mental conditions
and how they restricted her daily activities. In addition to low-back and ankle pain,
5
Claimant testified that she suffers from wrist pain and weakness, headaches and
depression. When questioned about her ability to return to any of her prior jobs in
housekeeping, cashiering or waitressing, Claimant stated that she could no longer
perform those jobs. Claimant admitted, however, that she is able to: (1) do light
gardening; (2) walk daily up to a quarter of a mile; (3) perform most of her own
housekeeping, including laundry in her basement; (4) prepare her own meals; and (5)
drive. Claimant testified that her highest level of education is one year of college. She
also testified that she applied for Social Security, but was denied on the basis that she was
not disabled.
Thereafter, the Director issued a decision affirming the Team’s denial of MHABD
benefits. The Director found that Claimant had not met her burden of proving that she
was permanently and totally disabled. Although the Director found that Claimant was
not gainfully employed and that her condition was “severe,” Claimant’s medical
conditions did not meet or equal Social Security disability listings “as set forth in 20
C.F.R., Ch. III, Part 404, Subpart P, Appendix 1 ....” Specifically, the Director
considered disability listings for Claimant’s “spinal condition,” her “leg and ankle injury”
and “depression.” The Director further found that Claimant was able to do past relevant
work because:
Dr. Ruble returned claimant to full duty in May 2010. Dr. Ruble’s and Dr.
McAdams’ X-Ray reports do not demonstrate Claimant suffers from a
severe spinal condition. Dr. Moniz’s report is simply not enough to
overcome the other medical evidence.
Lastly, the Director found that Claimant is able to do other work because:
Claimant testified that she is able to walk a quarter of a mile. Claimant
testified she is able to do laundry in the basement of her home. She is able
to do light gardening such as watering the flowers and pulling weeds.
6
Claimant has experience as a cashier and experience in the food service
industry. Claimant has one year of college education. There is no medical
evidence that Claimant could not do other work. There is nothing in the
record to support that Claimant is not capable of performing other work.
Considering Claimant’s [RFC], educational level, and prior work
experience, there is no evidence she will not be able to adjust to other
types of work within the next 12 months and thereby engage in substantial
gainful activity.
The Director therefore concluded that “Claimant is not permanently and totally disabled
and [is] medically ineligible to receive MHABD benefits.” This appeal followed.
Discussion and Decision
Point I
Claimant’s first point contends the Director’s decision to deny her application for
MHABD benefits was “not based in law” in that the Director “failed to properly apply
certain applicable Social Security regulations as required.”2 To properly analyze this
point, an overview of the statutes and regulations governing eligibility for MHABD
benefits is necessary.
Missouri administers Medicaid, which is a federal-state program providing
medical assistance to needy persons pursuant to Title XIX of the Social Security Act, in a
program known as “MO HealthNet.” § 208.001.2; § 208.151.1; J.P. v. Missouri State
Family Support Div., 318 S.W.3d 140, 144-45 (Mo. App. 2010). Generally,
2
We note Claimant’s point is defective because it fails, inter alia, to reference
the applicable regulations and specify the legal reasons to support the claim of reversible
error, in violation of Rule 84.04(d)(2). See Dep’t of Soc. Servs. v. Peace of Mind Adult
Day Care Ctr., 377 S.W.3d 631, 638 (Mo. App. 2012). Further, Claimant raised
additional claims of error in her brief and at oral argument that were not included in her
point relied on, in violation of Rule 84.04(e). See id. at 642 n.14. Because these
deficiencies do not impede our disposition on the merits, however, we exercise our
discretion to review the issues raised by Claimant’s point, as best we understand them, ex
gratia. See Bank of New York v. Yonts, 388 S.W.3d 560, 561 n.2 (Mo. App. 2012).
7
participation in Medicaid requires a state to develop a plan that complies with the basic
federal guidelines. Plumb v. Missouri Dept. of Social Services, Family Support Div.,
246 S.W.3d 475, 479 (Mo. App. 2007). “The methodology utilized to determine
eligibility for services by the state cannot be more restrictive than the methodology
utilized by the federal government. The state is permitted, however, to employ
methodologies which are less restrictive than those utilized by the federal government.”
Id. (citation omitted).
MO HealthNet provides medical assistance for permanently and totally disabled
persons. § 208.151.1(24)(c). “Persons who are eligible for [medical assistance] must
meet the eligibility requirements, other than income, for ... Permanent and Total
Disability ....” 13 C.S.R. 40-2.200(7).3 To be eligible to receive such medical assistance,
also known as MHABD benefits, for “permanent and total disability” means that “the
individual has some physical or mental impairment, disease or loss from which recovery
or substantial improvement cannot be expected and which substantially precludes him/her
from engaging in any occupation within his/her competence, such as holding a job or
homemaking.” 13 C.S.R. 40-2.100(1). In addition, the individual also must meet the
definition of “disability,” as defined by the Social Security Administration to receive
Social Security Disability and Supplemental Security Income (SSI), which is “the
individual’s inability to be gainfully and substantially employed for one year or longer
due to a physical or mental incapacity.” § 1060.000.00, Department of Social Services,
Family Support Division, Income Maintenance Manual; Chrismer v. Missouri State Div.
3
All references to the Code of State Regulations are to versions in current use,
namely: 13 C.S.R. 40-2.200(7) dated 12/31/05; 13 C.S.R. 40-2.100(1) dated 3/31/06.
All references to the Code of Federal Regulations are to the 2010 edition.
8
of Family Services, 816 S.W.2d 696, 700 (Mo. App. 1991); see 20 C.F.R. § 404.1505(a)
(disability benefits); 20 C.F.R. § 416.905(a) (SSI benefits). Claimant bears the burden of
proving that she is permanently and totally disabled and, therefore, medically eligible to
receive MHABD benefits. See Garrett v. Missouri Dept. of Social Services, 57 S.W.3d
916, 919 (Mo. App. 2001); Chrismer, 816 S.W.2d at 700.
Pursuant to 20 C.F.R. § 404.1520, a five-step analysis is used to determine
disability. These five sequential steps are, in relevant part, as follows:
[Step 1] (b) If you are working. If you are working and the work that you
are doing is substantial gainful activity, we will find you are not disabled
regardless of your medical condition or your age, education, and work
experience.
[Step 2] (c) You must have a severe impairment. If you do not have any
impairment or combination of impairments which significantly limits your
physical or mental ability to do basic work activities, we will find that you
do not have a severe impairment and are, therefore, not disabled ....
[Step 3] (d) When your impairment(s) meets or equals a listed impairment
in appendix 1. If you have an impairment(s) which meets the duration
requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience. (e) When your impairment(s) does not
meet or equal a listed impairment. If your impairment(s) does not meet or
equal a listed impairment, we will assess and make a finding about your
residual functional capacity based on all the relevant medical and other
evidence in your case record .... We use our residual functional capacity
assessment at the fourth step of the sequential evaluation process to
determine if you can do your past relevant work (paragraph (f) of this
section) and at the fifth step of the sequential evaluation process (if the
evaluation proceeds to this step) to determine if you can adjust to other
work (paragraph (g) of this section).
[Step 4] (f) Your impairment(s) must prevent you from doing your past
relevant work. If we cannot make a determination or decision at the first
three steps of the sequential evaluation process, we will compare our
residual functional capacity assessment, which we made under paragraph
(e) of this section, with the physical and mental demands of your past
relevant work .... If you can still do this kind of work, we will find you are
not disabled.
9
[Step 5] (g) Your impairments must prevent you from making an
adjustment to any other work. (1) If we find that you cannot do your past
relevant work because you have severe impairment(s) (or you do not have
any past relevant work), we will consider the same residual functional
capacity assessment we made under paragraph (e) of this section, together
with your vocational factors (your age, education, and work experience) to
determine if you can make an adjustment to other work. ... If you can
make an adjustment to other work, we will find you not disabled. If you
cannot, we will find you disabled.
See 20 C.F.R. § 404.1520(b)-(g) (internal references omitted); see also 20 C.F.R.
§ 416.920(b)-(g). Claimant argues that the Director erred in applying steps 3 and 4 of
this analysis.
With respect to step 3, Claimant argues the Director initially erred “by not
considering all of [Claimant’s] impairments in combination as required by the Social
Security regulations.” This argument is based upon 20 C.F.R. § 404.1523, which states:
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard to
whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined impact of the impairments will be considered
throughout the disability determination process. If we do not find that you
have a medically severe combination of impairments, we will determine
that you are not disabled (see § 404.1520).
Id.; see also 20 C.F.R. § 416.923. Claimant’s argument fails because 20 C.F.R.
§ 404.1523 does not apply to step 3. Instead, it is utilized in step 2 to determine “whether
your physical or mental impairment or impairments are of a sufficient medical severity
10
....” Id. (italics added). In the analysis for step 2 here, the Director ruled in Claimant’s
favor by finding that her condition was “severe.”4
With respect to step 4, Claimant argues the Director erred by failing to make
specific findings assessing Claimant’s RFC and comparing her “[RFC] to the physical
and mental demands of [her] past relevant work” to determine whether she is capable of
performing those tasks.5 For the following reasons, this argument also fails.
The applicable regulation is 20 C.F.R. § 404.1520(f). There are federal cases
which require the fact-finder to make specific factual findings in applying the regulation.
See, e.g., Groeper v. Sullivan, 932 F.2d 1234, 1238-39 (8th Cir. 1991). Claimant does not
cite any federal statute or regulation, however, which requires a state fact-finder to make
the same specific findings. In Missouri, the standards for a written decision in MO
HealthNet proceedings are discussed in §§ 208.080 and 536.090 RSMo (2000). With
respect to findings, § 536.090 provides, in relevant part:
Every decision and order in a contested case shall be in writing, and,
except in default cases or cases disposed of by stipulation, consent order
or agreed settlement, the decision, including orders refusing licenses, shall
include or be accompanied by findings of fact and conclusions of law.
The findings of fact shall be stated separately from the conclusions of law
4
In step 3, the Director found that Claimant’s impairments did not meet or equal
any Social Security listing for disability. Claimant does not argue the Director erred in
determining her impairments – her spinal condition, leg and ankle injury, and depression
– did not qualify as a disability. Because only conditions substantiated by medical
evidence can be considered in a disability determination, the Director properly
disregarded Claimant’s additional complaints that were not supported by medical
evidence. See 20 C.F.R. § 404.1508 (“[a] physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and laboratory findings,
not only by your statement of symptoms”); see also 20 C.F.R. § 416.908.
5
RFC, residual functional capacity, is defined as the most a person can do
despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). It is assessed using all
relevant evidence in the record. Id.
11
and shall include a concise statement of the findings on which the agency
bases its order.
Id. (emphasis added).6 Whether or not an agency “made adequate findings of fact is an
issue of law for our independent judgment.” State ex rel. Public Counsel v. Pub. Serv.
Comm’n, 274 S.W.3d 569, 576-77 (Mo. App. 2009). In Public Counsel, the western
district of this Court explained:
We use a flexible standard: The findings of fact must be sufficiently
definite and certain or specific under the circumstances of the particular
case to enable the court to review the decision intelligently and ascertain if
the facts afford a reasonable basis for the order without resorting to the
evidence. Findings are inadequate if they cause us to speculate as to
which part of the evidence the commission believed.
Id. at 577 (internal citations and quotation marks omitted); State ex rel. Aquila, Inc. v.
Public Service Comm’n of State, 326 S.W.3d 20, 28-29 (Mo. App. 2010).
We have no difficulty understanding the basis for the Director’s decision that
Claimant is able to perform past relevant work. The Director relied on Dr. Ruble’s May
2010 release of Claimant to work an eight-hour day with the assistance of a boot, with
weight bearing as tolerated. Although Claimant testified that she could no longer work
due to swelling of her ankle and calf, the Director found Dr. Ruble’s medical opinion and
treatment records more persuasive. See Chrismer v. Missouri State Div. of Family
Services, 816 S.W.2d 696, 700 (Mo. App. 1991) (“[t]he Division Director, as the
determiner of facts, is not required to accept as true each and every statement of
appellant”); see, e.g., Rader v. Missouri State Div. of Family Services, 810 S.W.2d 346,
6
Section 208.080 specifically provides that “[t]he director shall clearly state the
reasons for his decision and shall include a statement of findings of fact and conclusions
of law pertinent to the questions in issue.” § 208.080.7 RSMo (2000). Similarly,
Missouri regulations require “a statement of Findings of Fact and Conclusions of Law”
that must be based on the Missouri rules of evidence as applied to civil cases. 13 C.S.R.
§ 40-2.160(5)(G) dated 6/30/04.
12
348 (Mo. App. 1991) (“[t]he Director balanced appellant’s evidence against the medical
evidence and discounted appellant’s complaints accordingly”). In addition, it was up to
the Director to resolve conflicts in the evidence between Dr. Ruble’s medical evidence
and Dr. Moniz’s medical evidence, including the RFC questionnaires. See, e.g.,
Rader, 810 S.W.2d at 348; see also 20 C.F.R. § 404.1527(d)(2) (while medical source
opinions are considered in assessing RFC, the final determination of RFC is left to the
Commissioner). Thus, contrary to Claimant’s argument, the Director did not fail to
properly apply the applicable Social Security regulations.7 Point I is denied.8
Point II
Claimant’s second point contends the Director’s decision to deny her application
for MHABD benefits was “not supported by substantial evidence on the record as a
7
Claimant also argues that the Director failed to make explicit findings with
respect to step 5; that argument fails for the same reasons stated above. Additionally, any
alleged error is immaterial because the Director was not required to reach step 5. That
step of the analysis is only required “[i]f we find that you cannot do your past relevant
work ....” 20 C.F.R. § 404.1520(g) (underlining added). Because the Director found
Claimant could perform her past relevant work, the Director properly concluded Claimant
was not disabled under 20 C.F.R. § 404.1520(f) and could have ended the analysis there.
8
The gist of all of Claimant’s arguments is that the Director must make
eligibility determinations in strict compliance with Social Security regulations. However,
Claimant has not directed this Court’s attention to any portion of the Medicaid statute that
requires states to make the same factual findings required by federal decisions like
Groeper, supra. Missouri’s methodology to determine eligibility for services simply
cannot be more restrictive than that utilized by the federal government. Plumb v.
Missouri Dept. of Social Services, Family Support Div., 246 S.W.3d 475, 479 (Mo.
App. 2007); see J.P. v. Missouri State Family Support Div., 318 S.W.3d 140, 145 (Mo.
App. 2010); see also Wis. Dep’t of Health & Family Servs. v. Blumer, 534 U.S. 473,
479 (2002) (each participating state develops its own plan containing reasonable
standards for determining eligibility for and the extent of medical assistance within
boundaries set by the Medicaid statute and the Secretary of Health and Human Services);
Vaughn v. Missouri Dept. of Social Services, 323 S.W.3d 44, 47 (Mo. App. 2010); see
generally 42 U.S.C. § 1396a (2010). The Director in this case properly evaluated all of
the evidence in accordance with the five-step analysis as required under 20 C.F.R.
§ 404.1520.
13
whole [and was] arbitrary, capricious and unreasonable in that the Division Director
failed to accord proper weight to medical opinion evidence.” We disagree.
In support of her argument, Claimant relies on the general principle that “[a]
treating physician’s opinion is due controlling weight if that opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in the record.” Ellis v. Barnhart, 392 F.3d 988,
995 (8th Cir. 2005) (citation and internal quotation marks omitted). Here, however, the
opinion of Claimant’s physician, Dr. Moniz, was inconsistent with other medical
evidence. With respect to Claimant’s ability to perform past work, the Director noted
that Dr. Ruble returned Claimant to full duty in May 2010 and specifically found that
“Dr. Ruble’s and Dr. McAdams’ X-Ray reports do not demonstrate Claimant suffers
from a severe spinal condition.” The Director explained that “Dr. Moniz’s report is
simply not enough to overcome the other medical evidence.” Although Claimant argues
that the Director should have given controlling weight to her physician, Dr. Moniz, the
Director acted well within the authority to resolve conflicts in the evidence and determine
credibility. See Chrismer, 816 S.W.2d at 700; Rader, 810 S.W.2d at 348; see also Cruz
v. MO. Dept. of Social Services, 386 S.W.3d 899, 902 (Mo. App. 2012) (this Court
defers to the Director on factual matters). By relying primarily on Dr. Ruble’s medical
evidence, which contained detailed examination summaries, imaging reports and physical
therapy notes involving Claimant’s treatment over several months, the Director’s
decision to deny benefits was not arbitrary, capricious or unreasonable.
Moreover, the Director’s decision is supported by substantial and competent
evidence on the record as a whole. After determining that Claimant was not gainfully
14
employed and had a severe condition, the Director evaluated each of Claimant’s
medically determinable impairments and found none of her impairments met the Social
Security disability listings. See 20 C.F.R. § 404.1520(b)-(d). The determination that
Claimant could perform past relevant work was supported, in large part, by the medical
records of Dr. Ruble and Dr. McAdams, which demonstrated that Claimant’s ankle
exhibited good strength, stability and range of motion, that her back pain was likely the
result of a lumbar strain and that her depression did not interfere with her ability to work.
See 20 C.F.R. § 404.1520(e)-(f). Because the Director’s decision that Claimant failed to
prove she was permanently and totally disabled was supported by substantial and
competent evidence on the record as a whole, Point II is denied.
The Director’s decision and order is affirmed.
JEFFREY W. BATES, P.J. – OPINION AUTHOR
GARY W. LYNCH, J. – CONCUR
MARY W. SHEFFIELD, J. – CONCUR
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