Bailey v. Retirement Board

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Kathleen Bailey, ) MEMORANDUM DECISION
)
Petitioner, ) Case No. 20110859‐CA
)
v. )
) FILED
Retirement Board, Long Term Disability ) (December 20, 2012)
Program, )
) 2012 UT App 365Respondent. )
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Original Proceeding in this Court
Attorneys: David J. Holdsworth, Sandy, for Petitioner
David B. Hansen and Erin L. Gill, Salt Lake City, for Respondent
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Before Judges Davis, Voros, and Christiansen.
VOROS, Judge:
¶1 Petitioner Kathleen Bailey petitions for review of the Utah State Retirement
Board’s decision denying ongoing permanent total disability benefits. We decline to
disturb the Board’s ruling.
¶2 In reviewing agency decisions, this court may grant relief if “it determines that a
person seeking judicial review has been substantially prejudiced by . . . a determination
of fact, made or implied by the agency, that is not supported by substantial evidence
when viewed in light of the whole record before the court.” Utah Code Ann.
§ 63G‐4‐403(4), (4)(g) (LexisNexis 2011). A finding is supported by substantial evidence
“when a reasonable mind might accept as adequate the evidence supporting the
decision.” Martinez v. Media‐Paymaster Plus/Church of Jesus Christ of Latter‐day Saints,
2007 UT 42, ¶ 35, 164 P.3d 384 (citation and internal quotation marks omitted).
¶3 The Public Employees’ Long‐Term Disability Act, see Utah Code Ann.
§§ 49‐21‐101 to ‐407 (LexisNexis 2010), provides disability benefits to “eligible
employee[s]” who have a “total disability,” id. § 49‐21‐401(4). During the first twenty‐
four months of disability benefits, “total disability” means “the complete inability, due
to objective medical impairment, whether physical or mental, to engage in the eligible
employee’s regular occupation.” Id. § 49‐21‐102(11)(a). Thereafter, the definition of total
disability narrows in two ways. First, “total disability” means “the complete
inability . . . to engage in any gainful occupation which is reasonable, considering the
eligible employee’s education, training, and experience.” Id. § 49‐21‐102(11)(b). Second,
total disability must be determined “based solely on physical objective medical
impairment.” Id. “Objective medical impairment” means “an impairment resulting from
an injury or illness which is diagnosed by a physician and which is based on accepted
objective medical tests or findings rather than subjective complaints.” Id. § 49‐21‐102(6).
¶4 To paraphrase these statutory definitions, after the initial twenty‐four month
period, a state employee has a total disability only if she is (1) completely unable to
engage in any reasonable gainful occupation (2) based solely on physical impairment
(3) diagnosed from objective medical tests or findings and not subjective complaints.
Moreover, the employee bears the burden of proving that she has a disability that
qualifies under the narrowly drawn statutory scheme. See id. § 49‐11‐613(4).
¶5 Here, Bailey challenges the Board’s ruling that she did not meet her burden to
prove a total physical disability as shown by objective medical findings. Specifically, the
Board found that while Bailey “suffers from physical symptoms,” “the psychological
component of her symptoms is so predominating that it is the primary reason for any
inability to be gainfully employed.”
¶6 Bailey acknowledges her burden to marshal the evidence in support of the
Board’s findings. See Utah R. App. P. 24(a)(9) (“A party challenging a fact finding must
first marshal all record evidence that supports the challenged finding.”); see also
Martinez, 2007 UT 42, ¶ 17. However, she makes only a minimal effort to summarize the
evidence supporting the Board’s findings. In particular, Bailey’s opening brief is written
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as though no evidence of her mental health was before the Board. She thus ignores
considerable evidence that at least arguably supports the Board’s conclusion.
¶7 For example, Bailey acknowledges the Board’s reliance on a decision of the Social
Security Administration awarding her disability benefits on the basis of her mental
impairments. But she does not address the Social Security Administration’s detailed
discussion of her specific diagnoses.1 Bailey also acknowledges in her statement of facts
that she received her original two‐year state disability benefits “based on psychological
illness.” But she does not discuss the record evidence supporting that determination,
which is set forth in Respondent’s brief. An independent neuropsychological evaluation
performed by a licensed psychologist “support[ed] Mrs. Bailey’s claim that she has
disabling . . . problems.” These included half a dozen conditions. And over the years
health professionals have described Bailey as suffering from a variety of psychological
disorders. The psychologist concluded that Bailey would not be able to continue
working for the State “[a]s a result of all these psychological problems.”
¶8 In short, Bailey attempts to persuade us that the Board’s finding was
unsupported by substantial evidence without offering a fair summary of the evidence
that supports that finding.2 Formal briefing requirements aside, an argument that does
not fully acknowledge the evidence supporting a finding of fact has little chance, as a
matter of logic, of demonstrating that the finding lacked adequate factual support.
¶9 Bailey asserts that she presented “credible evidence through her testimony, her
treating physicians’ testimony, and her medical records attesting that her documented
objective medical [physical] impairments limit her functional ability and that those
limits preclude her from working.” Bailey provided evidence of physical impairment
1
Bailey did present additional evidence below showing that the Social Security
Administration provided conflicting explanations for the basis of the award of benefits.
Such evidentiary conflicts are primarily a matter for the fact finder to resolve. See Grace
Drilling Co. v. Board of Review of the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989).
2
Nor does Bailey acknowledge the weakness in her own evidence. For example,
she relies repeatedly on EKG, MRI, and X‐ray test results as “objective medical tests or
findings” in satisfaction of section 49‐21‐102(6). But these tests were all completed before
Bailey worked for the State for approximately a year and a half.
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primarily from two treating physicians. Dr. Giovanniello testified that Bailey’s physical
conditions were “causing significant pain . . . [and] functional deficits.” He concluded
that Bailey “can’t perform sedentary work” and thus “will be unable to maintain gainful
employment.” Dr. Murnin completed a medical source statement indicating that
Bailey’s physical conditions limited her ability to work by constantly interfering with
attention and concentration, and requiring her to elevate her legs while sitting and walk
around after fifteen minutes of continuous sitting.
¶10 Respondent presented evidence of Bailey’s physical condition primarily from
two consulting physicians. Based solely on Bailey’s medical records, Dr. Rondina
confirmed the presence of back and knee pain and found 12% whole person
impairment, but suggested, tentatively, that Bailey’s “psychiatric disease may also still
be a significant contributor to her alleged disability.” Dr. Stadler provided an
independent medical examination based on Bailey’s medical records and an in‐person
consultation. He concluded that the musculoskeletal examination was normal and that
the neurologic examination was normal. He ultimately found no impairment,
concluding that his examination did “not substantiate [Bailey’s] subjective complaints.”
¶11 Bailey argues that the evidence she presented should have been given more
weight than the evidence presented by the Respondent. She invites this court to adopt
an approach akin to the Social Security Administration’s treating physician rule. Under
this rule, the Social Security Administration “will generally ‘give more weight to
opinions from . . . treating sources,’ and ‘will always give good reasons in [its] notice of
determination or decision for the weight [it gives the] treating source’s opinion.’” Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 829 (2003) (quoting 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2) (2002)). Bailey argues that in a case involving a “battle of
doctors,” this rule would be helpful by providing “structure to the decision making
process versus arbitrary decision making.”
¶12 We decline to adopt the treating physician rule, principally because, unlike the
Commissioner of Social Security, the Utah State Retirement Board has not “adopted
regulations approving and formalizing use of the rule in the [agency’s] disability
program,” see 538 U.S. at 829. Moreover, “[t]he treating physician rule has not attracted
universal adherence outside the Social Security context.” Id. at 830 n.3. Furthermore, our
own supreme court has rejected a version of the rule in the workers’ compensation
context on the ground that it “would restrict the fact‐finding role of the [Labor]
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Commission, as that role has been defined by statute and case law.” See Rushton v. Gelco
Express, 732 P.2d 109, 111 (Utah 1986).
¶13 In sum, Bailey attempts to challenge the Board’s findings as unsupported by
substantial evidence by arguing that the Board erred in its credibility determinations
and its weighing of the evidence. “It is the province of the Board, not appellate courts,
to resolve conflicting evidence, and where inconsistent inferences can be drawn from
the same evidence, it is for the Board to draw the inferences.” Grace Drilling Co. v. Board
of Review of the Indus. Comm’n, 776 P.2d 63, 68 (Utah Ct. App. 1989). Had the Board
found in Bailey’s favor, this court might well have held that finding to be supported by
substantial evidence. However, neither Bailey’s brief on appeal nor our own review of
the record has persuaded us that the Board’s key finding was not supported by
substantial evidence. See Martinez v. Media‐Paymaster Plus/Church of Jesus Christ of
Latter‐day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384.
¶14 Finally, Bailey contends that the Board’s and the Hearing Officer’s findings of
fact are inadequate, because “the Hearing Officer did not explain why he did not find
Dr. Murnin’s or Dr. Giovanniello’s evidence and opinions persuasive but why he found
Dr. Stadler’s opinion persuasive. The Hearing Officer did not explain how he could
come to such a conclusion or why he came to such a conclusion.”
¶15 “An administrative agency must make findings of fact and conclusions of law
that are adequately detailed so as to permit meaningful appellate review.” Adams v.
Board of Review of the Indus. Comm’n, 821 P.2d 1, 4 (Utah Ct. App. 1991). For us to
meaningfully review an agency’s findings, “the findings must be ‘sufficiently detailed
and include enough subsidiary facts to disclose the steps by which the ultimate
conclusion on each factual issue was reached.’” Nyrehn v. Industrial Comm’n, 800 P.2d
330, 335 (Utah Ct. App. 1990) (quoting Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987)).
¶16 The Hearing Officer’s findings were adequate. The ultimate issue in this case is
whether Bailey had a total physical disability. The Hearing Officer supported his
ultimate finding with several subsidiary findings, including his finding that Dr.
Stadler’s and Dr. Rondina’s opinions were persuasive and that psychological
impairment was “the primary reason for any inability to be gainfully employed.” The
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basis for the agency’s decision is therefore clear, and the findings provide adequate
detail to allow us to review the sufficiency of the evidence supporting those findings.
¶17 We decline to disturb the Board’s ruling.
____________________________________
J. Frederic Voros Jr., Judge
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¶18 WE CONCUR:
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James Z. Davis, Judge
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Michele M. Christiansen, Judge
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