Moore v. Indiana Family & Social Services Administration

682 N.E.2d 545, 1997 Ind. App. LEXIS 766, 1997 WL 360788
CourtIndiana Court of Appeals
DecidedMay 19, 1997
Docket49A02-9510-CV-611
StatusPublished
Cited by19 cases

This text of 682 N.E.2d 545 (Moore v. Indiana Family & Social Services Administration) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. Indiana Family & Social Services Administration, 682 N.E.2d 545, 1997 Ind. App. LEXIS 766, 1997 WL 360788 (Ind. Ct. App. 1997).

Opinion

OPINION

SULLIVAN, Judge.

Appellant, David Moore (Moore) appeals, the trial court’s August 16, 1995 order in favor of the Family and Social Services Administration (the agency). The agency had affirmed the February 24, 1994 decision of the Administrative Law Judge (ALJ) denying Moore medical assistance to the disabled.

We reverse.

The sole issue for review is whether the agency erred in determining that Moore’s physical ailments failed to meet the statutory definition for disability under I.C. 12-14-15-1 (Burns Code Ed.Supp.1996).

Moore suffers from numerous medical conditions. The two relevant to this appeal are sleep apnea and cough syncope. Sleep apnea is a condition which causes Moore to stop breathing at night for periods of time, thus causing him to awaken. In fact, in one sleep study conducted upon Moore, he had as many as 87 apnea episodes in one hour. As a result, Moore gets a maximum of three hours of sleep per night, and he has difficulty staying awake during the day. Whether or not sleep apnea is treatable is questionable.

Cough syncope is a condition under which Moore coughs so violently that he passes out. It is undisputed that Moore’s cough syncope is not treatable.

In order to qualify for assistance as a disabled individual under the statute, a person must:

(2) [Have] a physical or mental impairment, disease, or loss that is verifiable by a physician licensed under I.C. 25-22.5 that appears reasonably certain to continue throughout the lifetime of the individual without significant improvement and that substantially impairs the individual’s ability to perform labor or services or to engage in a useful occupation. Employment in a sheltered workshop or under an approved vocational rehabilitation plan is not considered a useful occupation for the purposes of this chapter. Id.

In order to qualify for assistance, Moore must show that his disabilities both are reasonably certain to continue throughout his life without significant improvement and that they substantially impair his ability to work. Ordinarily, we would examine *547 Moore’s medical conditions individually; 1 however, since we detect fatal defects in the ALJ’s findings of fact, preventing an informed review by this court, we will reverse and remand this cause for proper findings.

The ALJ’s findings of fact and decision was entered on February 24, 1994. That decision was appealed to the agency, whereupon it was affirmed. The latter decision was subsequently reviewed by the Marion Superior Court which entered findings and conclusions. In actuality, the review court simply adopted the proposed findings of the agency. This same agency pointed out to the review court, in its own brief that the “court is bound by the findings of fact made by the agency if those findings are supported by substantial evidence.” Hamilton County Dep’t. Pub. Welfare v. Smith (1991) Ind.App., 567 N.E.2d 165, 168. The review court, when reviewing the decision of an administrative agency, simply does not have the power to enter findings of fact, and as such, its findings shall be ignored.

That brings this court to the findings as entered by the ALJ. As our Supreme Court has previously noted, “findings must be specific enough to provide the reader with an understanding of the Board’s reasons, based on the evidence, for its finding of ultimate fact.” Perez v. United States Steel Corp. (1981) Ind., 426 N.E.2d 29, 33 (emphasis in original). Therefore, findings which indicate that the testimony or evidence was this or the other are not findings of fact. Id.; Hehr v. Review Bd. of Ind. Emp. Sec. Div. (1989) Ind.App., 534 N.E.2d 1122, 1127, n. 4. A finding of fact must indicate, not what someone said is true, but what is determined to be true, for that is the trier of fact’s duty.

In the present case, the ALJ’s findings of fact are deficient. Numbers 10 through 26 all begin with Mr. Moore stated this, or Dr. Nazer indicates this, and so forth. None actually assert what the facts are according to the ALJ. These “findings” are essential to the ALJ’s conclusion. The conclusion may not rest upon the inadequate findings. The cause must be remanded for proper findings of fact.

Because the ALJ may be tempted upon remand to simply reword her “findings”, we deem it appropriate to address the merits of Moore’s appeal. It appears that even if proper findings had been entered, the agency would not prevail.

First, it is undisputed that Moore’s cough syncope will continue throughout his lifetime. However, as the ALJ’s findings connote, Moore’s condition improved upon taking the drug Tegretol. On April 20, 1992, Dr. Leeanne Nazer noted that Moore “had no more black-out spells since being on Tegre-tol.” Record at 166. Additionally, we note that Moore’s wife testified that Moore passed out two to three times per week for about one minute. The ALJ would be entitled to conclude, as she did, that such infrequent interruption would not substantially impair Moore’s ability to hold a job.

As noted above, the treatability of Moore’s sleep apnea is questionable. The ALJ simply concluded that:

[t]he medical evidence and testimony presented substantiates the appellant’s documented physical impairments have improved with treatment and although they may impair his ability to perform more strenuous types of labor the evidence does not substantiate the appellant would not be able to perform a less strenuous occupation. Record at 369.'

The record simply lacks evidence that Moore’s sleep apnea has shown substantial improvement.

Moore received treatment for apnea in the form of a CPAP device. The device consists of a mask that pushes air into Moore’s lungs to continue his breathing at night. However, due to claustrophobia, Moore was unable to continue use of the CPAP. Subsequently, Moore’s doctors tried a Bi-PAP device. This device replaced the mask with nasal pillows. Moore began to show improvement with use of the Bi-PAP; however, he eventually had to discontinue using it because of nasal con- *548 gestión, nasal drainage and feelings of suffocation.

Such temporary improvement in the symptoms of a disability will not suffice to constitute significant improvement under the statute. Moore directs our attention to Hamilton County, supra, 567 N.E.2d at 165, wherein we concluded that the statute requires a significant improvement in the underlying disease or impairment and not simply the symptoms of the impairment. We need not here address the distinction between an illness and its symptoms. The statute requires that the disability be “reasonably certain to continue throughout the lifetime of the individual without significant improvement.” I.C. 12-14-15-1.

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Bluebook (online)
682 N.E.2d 545, 1997 Ind. App. LEXIS 766, 1997 WL 360788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-indiana-family-social-services-administration-indctapp-1997.