Johnson v. Rhode Dept. of Human Services

• Decision Date: 15 December 2006
• Docket Number: PC 05-6663
• Parties: Johnson v. Rhode Dept. of Human Services
• Court: Rhode Island Superior Court

DANIEL JOHNSON
v.
RHODE ISLAND DEPARTMENT OF HUMAN SERVICES

No. PC/05-6663

Superior Court of Rhode Island

December 15, 2006

DECISION

GIBNEY, J.

Daniel Johnson (“Johnson” or “appellant”) appeals from a decision of a Hearing Officer of the Rhode Island Department of Human Services (“DHS”), denying his application for medical assistance. The appellant argues that the Hearing Officer erred by failing to allocate the appropriate weight to his treating physician’s opinion, failing to apply the correct legal standard, and failing to make sufficient findings of fact in support of its decision. DHS counters that the Hearing Officer’s decision was made upon proper application of the law and is supported by the evidence. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.

Facts and Travel

The appellant is a thirty-nine year-old male who worked in heavy construction, carpentry, and scuba diving for more than 20 years until he was abruptly forced to stop working as a result of a foot injury. That injury occurred in March of 2002, when appellant’s foot was run over by a car on Route 95. (Hr’g Tr., dated Sept. 20, 2005 at 4-5.) In early March 2002, appellant saw an orthopedic surgeon, Christopher W. DiGiovanni, M.D. (“Dr. DiGiovanni”), who diagnosed a very severe crush injury to Johnson’s right foot. (R.I. Hosp. Operating R., dated March 7, 2002.) The injury required a series of surgeries for multiple fractures and soft tissue injuries.

Due to swelling and burning sensations, appellant had pieces of surgical hardware removed from his foot in April 2002. (Tr. at 6-7; R.I. Hosp. Operating R., dated April 29, 2002.) This resulted in limitation of motion and gross swelling and stiffness. Dr. DiGiovanni noted in July 2002 that appellant was off medication and basically pain free. (University Orthopedics Evaluation, dated July 24, 2002.) He noted that the foot was healing and in satisfactory alignment, although appellant would experience moderate swelling for a year or two. Id. Appellant had additional hardware removed in August 2002 because of protruding hardware and ongoing pain. After three in-patient and two out-patient surgeries, amputation was considered. (Tr. at 5-6.)

In September 2002, Dr. DiGiovanni declared appellant to be at maximum medical improvement with a 29% lower extremity impairment rating based on American Medical Association (AMA) Guidelines, clearing him to return to work. (University Orthopedics Evaluation, dated Sept. 4, 2002.) However, a few months later in December 2002, Dr. DiGiovanni changed his rating to 33% due to Johnson’s continued foot pain, fatigue, and inability to perform his prior carpentry work. (University Orthopedics Evaluation, dated December 19, 2002.)

More than one and one-half years later, on September 23, 2004, Johnson returned to Dr. DiGiovanni, and Dr. DiGiovanni reported that he was supportive of appellant’s disability application. (University Orthopedics Evaluation, dated Sept. 23, 2004.) However, Dr. DiGiovanni reported that he believed there were many jobs Johnson could do “off his feet.” Id. Therefore, Dr. DiGiovanni found appellant was not totally disabled. Id. Instead, Dr. Giovanni concluded that Johnson could not engage in prolonged standing, walking, climbing or work involving heights. Id. In January of 2005, upon Dr. DiGiovanni’s referral, Johnson began seeing Jerrold Rosenberg, M.D. (Dr. Rosenberg) for pain.

Dr. Rosenberg, a pain specialist, saw appellant between January and September of 2005. During that time, Dr. Rosenberg consistently diagnosed Johnson as suffering from Chronic Pain Syndrome. EMG (electromyography) and NCV (nerve conduction velocity) tests showed abnormalities in parts of the foot, but a nerve test was inconclusive with no major nerve insult shown. (Letter from Dr. Rosenberg, dated Feb. 2, 2005; see Nerve Conduction Report, dated Feb. 2, 2005; see also Waveforms, dated Feb. 2, 2005.) Dr. Rosenberg continued to prescribe medications as Johnson’s complaints of pain persisted and increased in June and August of 2005. At Johnson’s last visit to Dr. Rosenberg in September 2005, Johnson reported spasms and limited motion. Dr. Rosenberg increased Johnson’s medication.

During the summer of 2005, Johnson underwent physical therapy in which his pain was reported as “current pain 7/10, best 6/10 and worst 10/10.” (R.I. Hospital Rehabilitation Services R., dated July 19, 2005.) The physical therapist reported that Johnson’s standing tolerance and ambulation tolerance were 10-15 minutes. The reports also noted he used a cane and tended to under-report his pain.

On May 18, 2005, appellant applied for Medical Assistance (“MA”) for disability coverage. On that same day, Dr. Rosenberg completed Johnson’s MA-63 form in support of his disability application. He diagnosed Johnson with Reflex Sympathetic Dystrophy (“RSD”) Lower Limb, citing supporting symptoms of numbness, weakness, and pain and rendering his prognosis as “undetermined.” (MA-63 Physician Examination R. (MA-63), dated May 17, 2005, at 2.) The form provided space to indicate whether claimant could perform specified functional activities for “0,” “1,” or more hours. Dr. Rosenberg circled that Johnson was functionally limited to “0” hours of walking, standing, sitting, reaching, bending, and lifting. Id. at 3.

With his disability application, Johnson submitted an AP-70 Information for Determination of Disability form, on which he indicated he has chronic pain and experiences greater pain when sitting, standing, or walking. (AP-70 Information for Disability Form, dated May 16, 2005, at 1.) He stated that the pain makes him lose concentration and impinges his ability to deal with others. Id. He cannot cook, vacuum, do laundry, walk, or talk on the phone. Id. at 3. He indicated he can do dishes, dust, and make beds; however, he has problems doing these activities because he has “problems sitting, standing, moving around because of foot disabilities and pain caused by [his] disability.” Id. The DHS issued a written denial of Medical Assistance on August 12, 2005. Johnson filed a timely request for a hearing.

On September 20, 2005, DHS conducted an administrative hearing on Johnson’s application. Johnson testified that in 2003 he returned to work and attempted several jobs, i.e. light bridge work at Cardi Construction, a driver for Haskell Construction. (Tr. at 12-14.) However, he was unable to perform the work because of the March 2002 injury, and he was quickly laid off. Johnson testified to continual discomfort, worsening pain throughout the day, and a need to elevate his foot every chance he gets. (Tr. at 8.) The DHS Medical Assistance Review Team (“MART”) reviewed the evidence. This evidence included Dr. Rosenberg’s MA-63 Physician’s Examination Report, the AP-70 form completed by Johnson, and medical records from Dr. DiGiovanni at University Orthopedics, Rhode Island Hospital Rehabilitation Services. The record was left open for 30 days for more documentation to be submitted. (Tr. at 21.) The Hearing Officer commented that appellant may want to submit additional materials, noting that appellant’s physical therapy reports document “increase pain with increased activity level.” (Tr. at 21.) The Hearing Officer further remarked as follows:

“Ms. DiOrio: … the physical therapy gives a good picture of —

Mr. Amaral: — how you are.” (Tr. at 21.)

In an Administrative Hearing Decision dated December 8, 2005, the DHS Hearing Officer confirmed the MART’s rejection of Johnson’s disability application. Utilizing the five-step test for disability, the MART found that Johnson is capable of performing sedentary work. The instant timely appeal followed.

Standard of Review

The Superior Court’s review of an appeal of an agency decision is governed by § 42-35-15(g), which provides the following:

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences conclusions, or decisions are

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

In reviewing an administrative agency decision pursuant to § 42-35-15, this Court acts in the same manner as an appellate court with a limited scope of review. Mine Safety Appliances v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). Therefore, great deference must be given to an agency’s final decision. R.I. Temps, Inc. v. Dep’t of Labor & Training, 749 A.2d 1121, 1125 (R.I. 2000). In reviewing an agency decision, this Court is limited to an examination of the certified record in deciding whether the agency's decision is supported by substantial evidence. Ctr. for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 684 (R.I. 1998) (citations omitted). Substantial evidence has been defined as “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion, and means an amount more than a scintilla but less than...