Alverez v. Adult & Family Services Division
Alverez v. Adult & Family Services Division
Opinion of the Court
Petitioner seeks review of a revised order of AFSD. He argues that the findings of fact in the order are not supported by substantial evidence and that they are inadequate as a matter of law to permit judicial review. He also argues that the order fails to meet the requirement that its reasoning support its conclusions. Home Plate, Inc. v. OLCC, 20 Or App 188, 530 P2d 862 (1975). We remand for reconsideration.
Among others, AFSD made these findings of fact:
The state points to language in the second final order to support its contention that “the agency adequately explained its reasons for concluding petitioner was not unemployable.”
“In this case, the doctors have provided specific objective findings about Mr. Alverez’s physical condition. In addition, the physicians have offered their opinion as to his employ-ability status. The Hearing Officer, upon reviewing these medical facts and opinions and after careful review of those offered by documents supplied by the Medical Review Team, concludes the following. Although the physicians’ physical and medical diagnoses are accepted as fact, the Hearing Officer places greater weight on the opinion of the Medical Review Team’s finding on employability. The Hearing Officer*432 holds the Medical Review Team’s expertise in matching physical limitations with potential employability is more likely to be accurate. This contention is made by the Hearing Officer because:
“(A) In this particular case, no showing was made that these physicians have specific expertise in the complicated area of job placement.
“(B) The Medical Review Team is comprised of medical professionals who are licensed to practice in the state of Oregon and do in fact have this expertise.”
We need not decide whether the quoted language, which the record shows is a boilerplate response prepared by the agency for use by hearing officers,
To allow the agency to diffuse its reasoning process throughout several orders would defeat the purpose of the substantial reasoning rule, which requires “the administrative agency to demonstrate that it has applied criteria prescribed by statute and by its own regulations and has not acted arbitrarily or on an ad hoc basis * * Home Plate, Inc. v. OLCC, supra, 20 Or App at 190. Piecemeal reasoning spread out among several orders creates the appearance of post hoc rationalization, as is demonstrated by this case. Our review is limited to the reasons and conclusions found in the reconsideration order to determine whether the agency has complied with the substantial reason requirement.
AFSD concluded on reconsideration:
“The medical evidence is not persuasive. A diabetic condition would not prohibit one from maintaining gainful employment, neither would bronchitis. The remaining physical conditions are not well documented. If they were, none of these conditions are suggestive of a condition that would render Mr. Alverez unable to work. The combination of complaints may limit him to certain kinds of employment, but the hearing officer does not believe that Mr. Alverez is unable to work within the meaning of [OAR 461-05-311].
“Our decision in this reconsideration must be made within the meaning of [OAR 461-05-311]. That is, is Mr. Alverez incapable of doing any work. We do not take into consideration such factors as training, location, or availability of work. The sole question is whether he can do any kind of work at any locale.
“Upon reviewing the medical evidence in the record, the hearing officer is not persuaded that Mr. Alverez is not capable of performing any kind of work. Admittedly he is a diabetic and does suffer from chronic bronchitis. Even so, we are not persuaded that he is unable to perform some kind of gainful employment. The OAR is very restrictive. The client must be unable to do any kind of work because of his physical or mental condition. The hearing officer is not persuaded that Mr. Alverez’s physical limitations restrict him to this degree.”
Reversed and remanded for reconsideration.
AFSD issued two final orders and a reconsideration order. All of them adopted the same legal standards. The hearing officer stated in the second final order that the “record and order [from the first final order] are incorporated into this record.” On reconsideration, the hearing officer made several findings of fact and noted expressly that they were “to be added to the Division’s Final Order.”
Presumably, the agency provides the hearing officers this form to bolster their reasoning process:
“FINAL ORDER INSERT INSTRUCTIONS FOR CPU STAFF:
“ON DOCTOR’S DIAGNOSIS Attach Glossary 0061.
GL “A” & follow prompts.
“INSTRUCTIONSFOR HEARING OFFICERS:
“1. Fill in the blanks with claimant’s name;
“2. Circle the words ‘and psychological’ if appropriate;
“3. Cross out the words ‘any psychological’ if inappropriate; and “4. Indicate where in the Final Order this paragraph is to be inserted.
“In this case, the doctors have provided specific objective findings about ( ) physical (and psychological) condition. In addition, the physicians have offered their opinion as to ( ) employability status. The Hearing Officer, upon reviewing these medical facts and opinions and after careful review of those offered through documents supplied by the Medical Review Team, concludes the following. Although the physician’s physical and medical diagnoses are accepted as fact, the Hearing Officer places greater weight on the opinion of the Medical Review Team’s finding on employability. The Hearing Officer holds the Medical Review Team’s expertise in matching physical limitations with potential employability is more likely to be accurate. This contention is made by the Hearing Officer because:
“(A) In this particular case, no showing was made that these physicians have specific expertise in the complicated area of job placement.
“(B) The Medical Review Team is comprised of medical professionals who are licensed to practice in the State of Oregon and do in fact have this expertise.
“These medical professionals have reviewed this case and concluded ( ) to be employable based on the available medical evidence. * * *”
The state’s brief says: “Each order incorporated the previous one.” That is not completely accurate. The second final order expressly incorporated the first final order. The order on reconsideration, from which the judicial review petition was filed,
Reference
- Full Case Name
- ALVEREZ v. ADULT AND FAMILY SERVICES DIVISION
- Cited By
- 2 cases
- Status
- Published