Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McKitrick v. State, Public Employees Retirement System (9/14/2012) sp-6710

McKitrick v. State, Public Employees Retirement System (9/14/2012) sp-6710

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



MARK MCKITRICK,                                ) 

                                               )       Supreme Court No. S-14178 

                        Appellant,             ) 

                                               )       Superior Court No. 3AN-09-08472 CI 

        v.                                     ) 

                                               )       O P I N I O N 

STATE OF ALASKA, PUBLIC                        ) 

EMPLOYEES RETIREMENT                           )       No. 6710 - September 14, 2012 

SYSTEM,                                        ) 

                                               ) 

                        Appellee,              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Fred Torrisi, Judge. 



                Appearances: Allison Mendel and Laurence Blakely, Mendel 

                & Associates, Anchorage, for Appellant.   Seth M. Beausang, 

                Assistant   Attorney   General,   Anchorage,   and   John   Burns, 

                Attorney General, Juneau, for Appellee. 



                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices. 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A   man   filed   an   application   for   both   occupational   and   nonoccupational 



disability benefits from the Public Employees Retirement System, claiming disability 



from both physical and mental conditions.           An administrative law judge (ALJ) denied 



the man's claim, finding that he failed to establish by a preponderance of the evidence 


----------------------- Page 2-----------------------

that he had a physical or mental disability that presumably permanently prevented him 



from satisfactorily performing his job. The man appealed and the superior court affirmed 



the   ALJ's   determination.     On    appeal   to   this   court,   the   man   challenges   the   ALJ's 



determination regarding his mental condition.  Because the ALJ's written findings were 



sufficiently detailed to support the ALJ's conclusions, and because substantial evidence 



supported the ALJ's conclusion that the man's mental condition did not amount to an 



occupational or nonoccupational disability, we affirm the superior court's decision to 



uphold the ALJ's order. 



II.     FACTS AND PROCEEDINGS 



        A.     Facts 



               Mark     McKitrick     was    employed     by  the   Municipality    of  Anchorage 



(Municipality)      as  a  bus  driver  from   1995    to  2006.   During     his  tenure  with   the 



Municipality, McKitrick filed nine reports of workplace injury or illness, some of which 



resulted in the filing of workers' compensation claims.             McKitrick's nine reports of 



injury or illness occurred between October 1996 and April 2006 and included reported 



injuries to his neck, back, arms, face, leg, hands, wrist, ear, and shoulder.  The majority 



of these reported injuries occurred from motor vehicle accidents, although in 2002 a 



reported injury occurred after a passenger spat on McKitrick and in April 2006 another 



occurred after a passenger assaulted McKitrick with a cane. 



               McKitrick did not return to work after the April 2006 assault.  On June 28, 



2006,    the   Municipality    controverted     McKitrick's     workers'    compensation      claims 



associated with his final two reports of injury.  On September 20, 2006, after McKitrick's 



physicians     would   not  release   him   to  return  to  work,  the  Municipality     terminated 



McKitrick. 



                                                 -2-                                          6710
 


----------------------- Page 3-----------------------

        B.      Proceedings 



                On November 22, 2006, McKitrick filed a timely application for disability 



benefits from the Public Employees Retirement System (PERS).                   McKitrick claimed 



disability   from   "  'neck,   back,   shoulders,   headaches,   PTSD,   chronic     pain,   chronic 



depression, [and] anxiety' as a result of 'multiple traumas.' "           McKitrick indicated his 



disability was due to a work-related injury.         A PERS administrator denied McKitrick's 



claim, finding that McKitrick had not proven that he was, at the time of separation from 



employment, presumably permanently disabled as defined by PERS. 



                McKitrick appealed the administrative decision.            ALJ Rebecca L. Pauli 



held a four-day hearing in September 2008, during which McKitrick was assisted by a 



non-attorney, Barbara Williams. During the hearing the ALJ heard testimony from three 



of McKitrick's treating healthcare providers, as well as expert medical testimony from 



an orthopedic surgeon who had reviewed McKitrick's extensive medical records and 



physically   examined   McKitrick.       McKitrick   also   testified.   The   evidentiary   record 



additionally contained deposition testimony of three physicians and McKitrick; over 



4,700    pages   of  medical,    employment,      and  other   records,   including    one  accident 



reconstruction report; 14 physical evaluations and consultations authored by medical, 



osteopathic,     and    chiropractic    professionals;     11   psychological     evaluations     and 



consultations authored by psychiatrists and psychologists; and one functional capacity 



assessment. 



                On May 26, 2009, the ALJ affirmed the PERS administrator's denial of 



McKitrick's   application   for   disability   benefits.   In   her   decision,   the   ALJ   analyzed 



McKitrick's physical and mental disabilities, assessed McKitrick's credibility in dealing 



with his health care providers, and concluded that McKitrick had failed to establish by 



a   preponderance      of  the  evidence   that   he  had  a  physical   or  mental   disability  that 



                                                 -3-                                           6710
 


----------------------- Page 4-----------------------

presumably permanently prevented him from working as a bus driver or in a comparable 



position for the Municipality. 

                        1.     Evidence of McKitrick's mental condition1 



                 In her decision, the ALJ considered the following evaluations by nine 



physicians regarding McKitrick's mental condition: 

                       Roy D. Clark, Jr., M.D., Psychiatrist2 



                Dr. Clark examined McKitrick in September 2003, following a May 2003 



motor vehicle accident.  Dr. Clark based his opinion on a review of medical records, an 



observation of Dr. Green's physical evaluation, an administration of standard psychiatric 



tests, and an interview with McKitrick. 



                Dr. Clark noted that McKitrick "presents with a history of several job- 



related injuries, as well as evidence of some coping skills that would predispose him to 



reporting a greater degree of discomfort and disability than might be expected on the 



basis of the objective findings present." Dr. Clark further noted that McKitrick "presents 



with evidence of a mood disorder" causally related to a 1996 injury and aggravated by 



subsequent injury, for which treatment had been beneficial. 



                Regarding McKitrick's ability to work, Dr. Clark stated that "[t]he objective 



mental    status   findings   do  not  identify   any   objective   barriers  to  Mr.   McKitrick's 



continued full-time employment at any job for which he is otherwise qualified and would 



choose to pursue." 



                       Ronald W. Ohlson, Ph.D., Psychologist 



        1       Although the ALJ considered McKitrick's physical and mental conditions, 



on    appeal   McKitrick    challenges    only   the  ALJ's   conclusion     regarding   his  mental 

condition. 



        2       Dr.   Clark   performed   his   psychiatric   evaluation   in   conjunction   with   a 



physical evaluation conducted by Dr. James Green. 



                                                 -4-                                           6710
 


----------------------- Page 5-----------------------

                Dr. Ohlson interviewed McKitrick at the request of McKitrick's attorney. 



Dr. Ohlson based his opinion on an interview with McKitrick and a review of three 



                                                                                 3 

psychological tests. Dr. Ohlson formally diagnosed only dysthymia,  although he noted 



McKitrick had symptoms of PTSD and chronic pain.   Dr. Ohlson opined that McKitrick 



"is still able to work and drive his bus, although he is more easily startled and cautious 



about people in his environment.          The fact that he is continuing to work and wants to 



work is a positive aspect of his recovery." 



                        Ronald G. Early, Ph.D., M.D., Psychiatrist and Neurologist 



                Dr. Early evaluated McKitrick in January 2005 for a board-ordered second 



medical evaluation.  He based his opinion on a review of McKitrick's medical records, 



an interview with McKitrick, and a review of psychological tests.                 Dr. Early's opinion 



was that "McKitrick should continue to drive a bus or have some other kind of suitable 



employment        depending      on   the  recommendations        of   his  treating    mental    health 



professional. Failure to continue employment will result in worsening of his condition." 



Dr. Early also noted that at the time of evaluation McKitrick was driving a rural route, 



which allowed him to avoid volatile passengers who might increase his anxiety.                      Dr. 



Early concluded that McKitrick "would be able to safely drive a bus in the [current] 



circumstances"   and   recommended   that   continued   special   consideration   be   given   to 



McKitrick. 



                        Dr. Ramzi Nassar, M.D. 



                Dr. Nassar evaluated McKitrick in September 2006.  He based his opinion 



on a review of primarily orthopedic medical records and an interview with McKitrick. 



He diagnosed McKitrick with PTSD, but               noted that the diagnosis "was only based on 



        3 

                "Dysthymia is a mild, but chronic, form of depression." Dysthymia , MAYO 

CLINIC , http://www.mayoclinic.com/health/dysthymia/DS01111 (last visited Aug. 20, 

2012). 



                                                  -5-                                               6710 


----------------------- Page 6-----------------------

the   patient's   [subjective]    report"   and   that  he  had   "no   way    of  corroborating     this 



information, nor [did he] feel it [was his] role to corroborate information."              Dr. Nassar 



refused to fill out a disability form for McKitrick, as was his usual practice.  Regarding 



McKitrick's   ability   to   work,   Dr.   Nassar   stated:  "I   feel   at   this   time   [McKitrick]   is 



incapable of working secondary to his psychiatric symptoms, but my goal is to get him 



to a point of being either occupationally and vocationally trainable or be able to return 

to his regular duties if he is physically capable of doing so."4 



                        Eric Goranson, M.D., Psychiatrist 



                Dr. Goranson attempted to evaluate McKitrick in December 2006.  About 



three-quarters of the way through the psychiatric evaluation, McKitrick became agitated 



and walked out.  Because he was unable to complete the evaluation, Dr. Goranson was 



ethically   prohibited   from   providing   a   firm    diagnosis.    Nonetheless,   Dr.   Goranson 



strongly suspected the appropriate diagnosis to be malingering.               Dr. Goranson did not 

believe McKitrick had dysthymia, any depressive disorders, or somatoform disorder,5 



and stated that McKitrick "certainly does not have post traumatic stress disorder."                 Dr. 



        4       Dr. Nassar was deposed on May 30, 2007.              At his deposition, Dr. Nassar 



was informed of McKitrick's prior history and a letter McKitrick had written to the 

Municipality, which stated that Dr. Nassar would be supporting his psychological claim 

of   disability.  Dr.   Nassar   began   to   wonder   whether   McKitrick's   "statements   in   the 

beginning were actually pretty accurate."   Regardless, Dr. Nassar testified that, had the 

information presented to him at the deposition been available at the time of his initial 

evaluation of McKitrick, it would not have altered his treatment. Dr. Nassar still thought 

McKitrick incapable of returning to work, but he refrained from rendering an opinion on 

McKitrick's future ability to work. 



        5       "The somatoform disorders are a group of psychiatric disorders that cause 



unexplained physical symptoms." Oliver Oyama, Catherine Paltoo, & Julian Greengold, 

Somatoform Disorders, 76 AM . FAMILY  PHYSICIAN 1333, 1333 (2007),  available at 

http://www.aafp.org/afp/2007/1101/p1333.html. 



                                                  -6-                                             6710
 


----------------------- Page 7-----------------------

Goranson also was concerned about the medical care McKitrick was receiving, noting 



it was "at best fragmented, poorly documented and influenced adversely by his bullying 



and manipulativeness towards healthcare professionals. [McKitrick] is receiving entirely 



too many medications."       Dr. Goranson further opined that McKitrick was "primarily 



interested in entitlement certification" and was "milking" workers' compensation claims 



"to obtain financial compensation, multiple excuses from adult responsibilities, lots of 



unnecessary testing, visits to specialists, etc." 



                      Wandal W. Winn, M.D., Psychiatrist 



               Dr. Winn performed an evaluation of McKitrick in December 2007.  He 



based his opinion on psychological testing and an interview with McKitrick.  Dr. Winn 



diagnosed PTSD and major depressive disorder and recommended psychotherapeutic 



services,    antidepressant    therapy,   and   a  potential   future   referral  to  vocational 



rehabilitation, noting that "a return to work is likely to reduce [McKitrick's] stressors and 



his depression through re-establishing his identity as a healthy, productive male." 



                      Richard D. Fuller, Ph.D., Clinical Neuropsychologist 



               Dr. Fuller performed an evaluation of McKitrick in June 2008.            He based 



his opinion on an interview with McKitrick and the results of a personality inventory. 



Dr.   Fuller  diagnosed    McKitrick    with:  chronic    pain  associated   with   medical   and 

psychological factors; major depression; PTSD; and panic disorder with agoraphobia.6 



Dr. Fuller added: "Pessimism and anger govern both [McKitrick's] perceptions and 



behavior reducing the ability to identify solutions to his situation, resulting in ongoing 



resentment and disability."     He expressed no opinion regarding McKitrick's ability to 



return to work. 



        6      "Agoraphobia" is an anxiety disorder characterized by avoidance of anxiety 



related to open spaces or any place outside of one's home or a safe zone.  Agoraphobia , 

BEHAVE NET , behavenet.com/agoraphobia (last visited Aug. 20, 2012). 



                                               -7-                                           6710 


----------------------- Page 8-----------------------

                        William G. Campbell, M.D., Psychiatrist 



                Dr. Campbell interviewed McKitrick in August 2008 as part of a psychiatric 



disability evaluation. He based his opinion on an interview with McKitrick, McKitrick's 



medical records, a   report of MMPI testing completed by Dr. Fuller, and psychiatric 



evaluations by Drs. Goranson and Nassar. 



                Dr.   Campbell   diagnosed   McKitrick   with   pain   disorder   associated   with 



psychological factors, depressive disorder, and opiate-induced mood disorder. He agreed 



with Dr. Goranson that McKitrick did not have PTSD.                 He characterized McKitrick as 



a   "professional     patient,"   noting   McKitrick's     life  "is  currently   centered    on   taking 



medications and interacting with doctors and representatives of insurance companies." 



Further, Dr. Campbell held the opinion that McKitrick's "use of opiates [contributes] to 



symptoms of depression, anxiety, irritability, social withdrawal, fatigue, nightmares and 



insomnia   on   a   pharmacologic   basis."       Regarding   McKitrick's   ability   to   work,   Dr. 



Campbell stated that if McKitrick "were not taking opiates, he would be able to resume 



driving a bus." 



                        Thomas A. Rodgers, M.D., Psychiatrist 



                Dr. Rodgers conducted a record review of McKitrick's mental condition at 



the request of the State Division of Retirement and Benefits, which administers PERS. 



He submitted his report in September 2008. 



                Dr. Rodgers stated: 



                There   is   no   question   that   Mr.   McKitrick   has   been   a   very 

                difficult man to evaluate and treat successfully.   He has filed 

                numerous   injury   claims,   for   years   has   been   on   very   high 

                doses of opiate narcotics, most likely does not totally tell the 

                truth, sees himself as a victim, and bounces from doctor to 

                doctor.  It is apparent that he had been treated for depression 

                for many years prior to the purported work related injuries in 

                2006.      What     I  am    impressed     with   is  that  his  overall 



                                                   -8-                                             6710
 


----------------------- Page 9-----------------------

                psychiatric clinical condition following the 2006 incidents 

                 does not appear to be any worse than prior to that date.  There 

                 is a remarkable consistency in the psychiatric-psychological 

                 data    prior   to  the   incidents,   immediately       following     the 

                 incidents, and now in the 2008 reports. 



                 . . . I am not certain that Mr. McKitrick is totally malingering 

                but   his   underlying   personality,   bullying   and   manipulative 

                behavior,   and   viewing   himself   as   a   perpetual   victim   has 

                 significantly     colored    any   ability  to  document      a  genuine 

                 disorder.    No doubt he is frustrated, in pain, and depressed 

                but   he   was   so   prior   to   the   2006   incidents. I   do   not   find 

                 compelling evidence that his overall condition changed much 

                 following the 2006 incidents even though, in my opinion, he 

                believes it has.  He was working in spite of his problems and, 

                 in agreeing with Dr. Campbell, he likely could do so again if 

                 he could discontinue the opiate pain medications. 



Dr. Rodgers concluded that McKitrick was not "totally and permanently occupationally 



disabled at the time he separated from employment on September 2006, due to a mental 



condition . . . that presumably prevented him from satisfactorily performing his usual 



duties as a bus driver or those of another comparable position[.]" 



                         2.      The ALJ's evaluation of McKitrick's credibility 



                 Due to the subjective nature of McKitrick's self-reported pain complaints, 



the ALJ found it important to assess McKitrick's credibility when dealing with his health 



care providers.  The ALJ discounted McKitrick's credibility for four reasons.  First, the 



ALJ noted that "[m]any providers found Mr. McKitrick to be combative and unwilling 



to   listen   to   their diagnoses if they   were   not what [McKitrick] wanted   to   hear.           If   a 



provider was unwilling to agree with [him] regarding his course of treatment or ability 



to return to work, Mr. McKitrick would switch providers."  Second, the ALJ found that 



"McKitrick was not forthcoming and failed to provide several   providers with a full 



picture of his medical history."         Third, the ALJ noted that McKitrick "was observed, 



                                                    -9-                                              6710
 


----------------------- Page 10-----------------------

throughout the prehearing and hearing in this matter, to be 'conveniently confused' when 



something was not going his way, and then clear and precise when it was not adverse to 



his   outcome."    Finally,   the   ALJ   found   "McKitrick   provided   testimony   that   was   not 



corroborated by the extensive medical record."  For example, the ALJ noted McKitrick 



testified "he was able to travel to Minneapolis only after receiving injections and other 



treatment    specifically   to  ready   him  for  traveling,   yet  the  medical   records   do  not 



corroborate his testimony."       Based on the above, the ALJ concluded that "McKitrick 



[was] not a credible witness and the reliability of his subjective complaints [was] called 



into question." 



                       3.      The ALJ's analysis of McKitrick's mental disability 



               In affirming the PERS administrator's denial of McKitrick's application for 



disability benefits, the ALJ acknowledged that "[t]he record and objective testing does 



establish that it is more likely than not that Mr. McKitrick suffers from some form of a 



mental condition."      But the ALJ noted that "[s]imply having one or a combination of 



these conditions does [not] prevent Mr. McKitrick from driving a bus."              The ALJ then 



considered whether McKitrick proved by a preponderance of the evidence that his mental 



condition presumably permanently prevented him from satisfactorily performing his job 



as a bus driver. The ALJ considered McKitrick's subjective complaints that purportedly 



rendered him unable to drive a bus.         But she discounted McKitrick's complaints based 



on   her   finding   that   McKitrick   lacked   credibility. The   ALJ   concluded   McKitrick's 



assertions, without further corroboration, were "insufficient to meet his burden of proof." 



                The ALJ then considered the conclusions of several physicians who opined 



McKitrick could return to work, some of whom concluded that a return to work would 



be beneficial for McKitrick's mental health. The ALJ found these physicians to have had 



a more complete profile of McKitrick than the sole physician who concluded McKitrick 



could not work, and the ALJ thus concluded their opinions were   entitled to greater 



                                                -10-                                          6710
 


----------------------- Page 11-----------------------

weight.  The ALJ concluded that, "[w]hile the record is voluminous, it does not support 



a finding that it is more probable than not that Mr. McKitrick's mental condition(s) 



presumably permanently precluded him from performing the duties of his job." 



                McKitrick appealed to the superior court, which affirmed the decision of 



the ALJ.    McKitrick now appeals from the superior court's decision. 



III.    STANDARD OF REVIEW 



                "When the superior court acts as an intermediate court of appeal in an 

administrative matter, we independently review the merits of the board's decision."7 



                "Factual findings made by the board are reviewed under the 'substantial 

evidence' standard."8      Under the substantial evidence standard, "[f]actual findings will 



be upheld so long as there is enough relevant evidence to allow a reasonable mind to 

adequately support such a conclusion."9           "[W]e will not reweigh conflicting evidence, 



determine witness credibility, or evaluate competing inferences from testimony," as these 

functions are reserved to the agency.10       "[E]ven where there is conflicting evidence, [we] 



will uphold the . . . decision if it is supported by substantial evidence."11 



        7       Rhines   v.   State ,   30  P.3d   621,   624   (Alaska   2001)   (citing  DeYonge   v. 



NANA/Marriott , 1 P.3d 90, 94 (Alaska 2000)). 



        8       Id. 



        9       Id. 



        10      Lindhag v. State, Dep't of Natural Res. , 123 P.3d 948, 952 (Alaska 2005) 



(quoting Robinson   v.   Municipality   of   Anchorage , 69   P.3d   489, 493   (Alaska   2003)) 

(internal quotation marks omitted); see also Rhines, 30 P.3d at 629 (This court will not 

reweigh the evidence under the substantial evidence standard; it will "only determine if 

such   evidence   exists."   (citing Municipality   of   Anchorage,   Police   &  Fire   Ret.   Bd.   v. 

Coffey, 893 P.2d 722, 726 (Alaska 1995))). 



        11      DeYonge , 1 P.3d at 94 (citing Williams v. State, Dep't of Revenue, 938 P.2d 



                                                                                        (continued...) 



                                                  -11-                                            6710
 


----------------------- Page 12-----------------------

                To the extent the ALJ's decision is based on statutory interpretation, "such 



decisions involve questions of law to which we apply our independent judgment.  We 



will   adopt   the   rule   of   law   that   is   most   persuasive   in   light   of   precedent,   reason,   and 

policy."12 



IV.     DISCUSSION 



        Substantial Evidence Supported The ALJ's Conclusion That McKitrick's 

        Mental Condition Did Not Amount To An Occupational Or Nonoccupational 

        Disability. 



                McKitrick   advances   two   primary   arguments   on   appeal:   (1)   the   ALJ's 



written   findings   were   insufficiently   detailed   to   support   her   conclusions; and   (2)   the 



opinions of physicians who believed McKitrick able to return to work do not constitute 



substantial evidence of McKitrick's ability to satisfactorily perform his job as a bus 



driver. 



                PERS      provides    members      with   two   types   of   disability  benefits:    (1) 

occupational13      and   (2)  nonoccupational.14        Eligibility   for   both   occupational     and 



        11      (...continued) 



1065, 1069 (Alaska 1997)). 



        12      Rhines , 30 P.3d at 624 (quoting Berger v. Wien Air Alaska , 995 P.2d 240, 



242 (Alaska 2000)) (internal quotation marks omitted). 



        13      AS     39.35.410(a)      provides    that   "[a]n   employee      is  eligible   for  an 



occupational   disability   benefit   if   employment   is   terminated   because   of   a   total   and 

apparently permanent occupational disability, as defined in AS 39.35.680, before the 

employee's normal retirement date." AS 39.35.680(27) defines "occupational disability" 

as follows: 

                a physical or mental condition that, in the judgment of the 

                administrator, presumably permanently prevents an employee 

                from satisfactorily performing the employee's usual duties 

                for an employer or the duties of another comparable position 

                                                                                        (continued...) 



                                                  -12-                                            6710
 


----------------------- Page 13-----------------------

nonoccupational disability benefits requires an employee to prove by a preponderance 



of   the  evidence     that  the  employee     has   a  "mental    condition   that  .  .  .  presumably 



permanently   prevents   [the]   employee   from   satisfactorily   performing   the   employee's 



usual duties . . . or the duties of another comparable position or job that an employer 

makes available and for which the employee is qualified by training or education."15 



        13	     (...continued) 



                or job that an employer makes available and for which the 

                employee is qualified by training or education; however, the 

                proximate   cause   of   the   condition   must   be   a   bodily   injury 

                sustained, or a hazard undergone, while in the performance 

                and within the scope of the employee's duties and not the 

                proximate result of the wilful negligence of the employee. 



        14      AS     39.35.400(a)      provides     that   "[a]n   employee      is   eligible   for   a 



nonoccupational disability benefit if the employee's employment is terminated because 

of    a  total  and   apparently     permanent      nonoccupational       disability,   as   defined    in 

AS 39.35.680."       AS 39.35.680(24) defines "nonoccupational disability" as follows: 



                a physical or mental condition that, in the judgment of the 

                administrator, presumably permanently prevents an employee 

                from satisfactorily performing the employee's usual duties 

                for an employer or the duties of another position or job that 

                an employer makes available and for which the employee is 

                qualified by training or education, not including a condition 

                resulting from a cause that the board, in its regulations[,] has 

                excluded. 



        15      AS   39.35.680(24),   (26).      The   ALJ   did   not   reach   the   issue   of   whether 



McKitrick's mental condition was proximately caused by his employment because she 

determined McKitrick did not sustain his burden of proving he had a mental condition 

that presumably permanently prevented him from satisfactorily performing his job. 



                                                  -13-	                                            6710
 


----------------------- Page 14-----------------------

"The   employee   has   the   burden   of   proving   that   the   requirements   of   the   statute   [are] 

met."16 



                1.	     The ALJ's written findings were sufficiently detailed to support 

                        her conclusions. 



                McKitrick argues that the ALJ's written findings are insufficiently detailed 



to   support her conclusions.       In particular, McKitrick contends that the ALJ "simply 



concluded that McKitrick is able to work without making sufficiently specific findings 



on the numerous diagnoses of mental conditions," particularly somatoform disorder, 



chronic     pain   syndrome,     and   PTSD.       Without     such   findings,   McKitrick      argues, 



meaningful appellate review is unavailable.             McKitrick contends that a "meaningful 



reading   of   the   statutory   definition   of   'occupational   disability'   [or   nonoccupational 



disability] " requires the ALJ to determine both the nature and severity of McKitrick's 



alleged    mental    condition    before   determining     whether     that  condition    "presumably 



permanently" prevents him from satisfactorily completing his work as a bus driver.  In 

support of his argument, McKitrick relies on Stephens v. ITT/Felec Services17 for the 



proposition that an ALJ must make "sufficiently specific findings."18 



                "An administrative agency must make findings of fact and conclusions of 

law regarding all issues that are both 'material' and 'contested.' "19           We will remand the 



case    if  an  agency's   findings    or  conclusions    are   "insufficient   to  permit   intelligent 



        16      Rhines , 30 P.3d at 628; see also Stalnaker v. Williams, 960 P.2d 590, 594 



(Alaska 1998); State v. Cacioppo, 813 P.2d 679, 682-83 (Alaska 1991). 



        17      915 P.2d 620 (Alaska 1996). 



        18      Id. at 627. 



        19      Lindhag v. State, Dep't of Natural Res. , 123 P.3d 948, 953 (Alaska 2005) 



(citing Bolieu v. Our Lady of Compassion Care Ctr. , 983 P.2d 1270, 1275 (Alaska 

1999)). 



                                                  -14-	                                           6710
 


----------------------- Page 15-----------------------

appellate   review."20      "Findings   are   adequate   to   permit   appellate   review   when   at   a 



minimum,        they   show     that   the  [agency]     considered      each   issue    of  significance, 

demonstrate the basis for the [agency's] decision, and are sufficiently detailed."21 



                 McKitrick's argument is unavailing.            Pursuant to AS 39.35.680(24) and 



AS    39.35.680(27),   an      employee      must   prove    each   of   three  distinct   elements    by   a 



preponderance         of  the   evidence     as   part   of  an   application     for   occupational      or 



nonoccupational disability benefits: (1) There must be "a physical or mental condition"; 



(2)  the   condition     must   "prevent[]   an    employee     from    satisfactorily    performing     the 



employee's usual duties for an employer or the duties of another position or job that an 



employer   makes   available   and   for   which   the   employee   is   qualified   by   training   or 



education"; and (3) the condition must be "presumably permanent[]."   The statutory test 



is conjunctive - an absence of any element is fatal to an employee's application for 



disability benefits. 



                 The   ALJ   specifically   found   that   McKitrick   had   satisfied   his   burden   of 



proving by a preponderance of the evidence that he suffers from a mental condition. 



Outside of whether that mental condition presumably permanently prevents him from 



satisfactorily performing his job as a bus driver, the plain language of AS 39.35.680(24) 



and AS 39.35.680(27) requires no additional findings regarding the nature and severity 



of McKitrick's mental condition.  The ALJ also specifically determined that McKitrick 



was not presumably permanently prevented from satisfactorily completing his job as a 



bus driver.  Pursuant to the plain language of AS 39.35.680(24) and AS 39.35.680(27), 



each element is dispositive - so long as McKitrick was not prevented from satisfactorily 



        20       Id. (citing Stephens, 915 P.2d at 627). 



        21       Id.   (citing  Stephens,   915   P.2d   at   629   (Matthews,   J.,   dissenting   in   part) 



(internal quotation marks omitted)). 



                                                    -15-                                                6710 


----------------------- Page 16-----------------------

performing   his job as a bus driver, McKitrick would be unable to meet his burden, 



regardless of the nature and severity of his mental condition. 



                 McKitrick makes a related argument that the ALJ's written findings fail to 



adequately explain her conclusions regarding McKitrick's alleged disability, including: 



a failure "to recognize or analyze the fact that the precise evidence [the ALJ] found to 



support denial of benefits, i.e., that [McKitrick's] pain cannot be explained solely on the 



basis of physical causes, is in fact consistent with the mental health diagnoses"; and a 



failure   "to   perform   any   analysis   of   whether   [McKitrick's]   mental   health   symptoms 



impeded his ability to drive a bus."  McKitrick contends such failure to explain requires 



a remand. 



                 In   her   order,   the   ALJ   recited   the   factual   history   of   the   case   and   then 



analyzed      every   physical    and   mental    health   evaluation     submitted     into  the  record, 



including the mental health evaluations of nine physicians and psychologists.  The ALJ 



assessed each physician's or psychologist's mental health diagnoses, identifying relevant 



observations   and   opinions   of   each,   including,   where   offered,   any   opinion   regarding 



McKitrick's   ability   to   work.     The   ALJ   explained   why   she   discounted   McKitrick's 



subjective complaints and why she found McKitrick lacked credibility in dealing with 



his health care providers.        The ALJ then applied the correct statutory tests regarding 



occupational and nonoccupational disabilities and concluded McKitrick failed to prove 



that his mental condition presumably permanently prevented him from satisfactorily 



performing his work by a preponderance of the evidence. 



                 Contrary   to   McKitrick's   assertions,   the   ALJ   specifically   identified   her 



reasons for discounting diagnoses based on McKitrick's subjective complaints and for 



not further analyzing his alleged mental health symptoms - she found that McKitrick 



lacked   credibility.    The   ALJ   then   concluded   that   McKitrick's   subjective   statements 



alone, on account of his lack of credibility, were insufficient to prove he was prevented 



                                                   -16-                                              6710
 


----------------------- Page 17-----------------------

from performing his job.         Rather than defer to McKitrick's subjective statements, the 



ALJ   specifically   referenced   several   physicians'   and   psychologists'   conclusions   that 



McKitrick could work. The ALJ noted that she found these physicians and psychologists 



to have "had a more complete profile of Mr. McKitrick than did Dr. Nassar," the sole 



physician who opined that McKitrick could not return to work.                    "Therefore," the ALJ 



concluded,   "their   opinion[s]   regarding   Mr.   McKitrick's   ability   to   work   [are]   more 



persuasive   than   Dr.   Nassar's."      The   ALJ's   explanation   adequately   shows   that   she 



considered each issue of significance, demonstrated the basis for her decision, and was 



sufficiently detailed to support her conclusions. 



                 2.      Substantial evidence supported the ALJ's conclusion. 



                 McKitrick   next   contends   that   the   ALJ   lacked   substantial   evidence   to 



support      her  conclusion      that  McKitrick      did   not   suffer   from    an   occupational      or 



nonoccupational disability.  In particular, he argues that the opinions of physicians who 



believed McKitrick able to return to work do not constitute substantial evidence   of 



McKitrick's ability   to   satisfactorily perform his job.            McKitrick contends that these 



doctors "did not conclude that McKitrick was 'not mentally disabled' " and "provided 



no   opinion   on   whether   McKitrick   was   able   to   'satisfactorily   perform[]   [his]   usual 



duties.' " McKitrick also contends that "[a] finding that McKitrick was disabled by his 



prescribed   use   of   opiates   supports   a   finding   of   mental   disability   as   a   result   of   his 



diagnosed impairments." 



                 Because the ALJ determined that McKitrick's subjective complaints of pain 



were   not   credible,   the   ALJ   primarily   relied   on   the   opinions   of   nine   physicians   and 



psychologists who concluded that McKitrick could return to work.                       Of the nine who 



evaluated McKitrick's mental health, five concluded McKitrick could return to work. 



Of   these    five,  two   concluded      a  return  to  work    would     have   a  positive   impact   on 



                                                    -17-                                              6710
 


----------------------- Page 18-----------------------

McKitrick's recovery.       The ALJ found the opinions of these five more persuasive than 



the others, and accordingly gave greater weight to their conclusions. 



                Of the nine physicians and psychologists, only one, Dr. Nassar, concluded 



that McKitrick could not work.   But the ALJ discounted Dr. Nassar's evaluation, noting 



that Dr. Nassar did not perform any testing on McKitrick and that his diagnosis of PTSD 



was based solely on McKitrick's subjective self-reporting, which the ALJ did not find 



credible.  Dr. Nassar's opinion also was based on incomplete information received from 



McKitrick. 



                It is true, as McKitrick contends, that of the five physicians who thought 



McKitrick   could   return   to   work,   only   one,   Dr.   Rodgers,   unequivocally   recited   the 



statutory language and concluded that McKitrick was not "presumably [permanently] 



prevented . . . from satisfactorily performing his usual duties as a bus driver or those of 



another comparable position[.]"        And it is true that, of those same five physicians, only 



Dr.   Rodgers   unequivocally   stated   that   McKitrick   would   be   able   to   "satisfactorily" 



perform his job as a bus driver, were he to return to work.  But a reasonable mind could 



accept that the opinions of five physicians who thought McKitrick could return to work 



were   adequate   to   support   the   ALJ's   conclusion   that   McKitrick   was   not   presumably 



permanently prevented from satisfactorily performing his job as a bus driver. Moreover, 



Dr. Rodgers's opinion alone could constitute substantial evidence in support of the ALJ's 

decision.22 



                Additionally, the fact that several physicians concluded that McKitrick 



should not return to work until he discontinued use of opiate pain medications does not 



        22      See, e.g., Lindhag v. State, Dep't of Natural Res. , 123 P.3d 948, 953-54 



(Alaska 2005) (board may appropriately rely on one medical expert over others where 

decision to do so is accompanied by sufficient explanation and medical expert's opinion 

constitutes substantial evidence). 



                                                 -18-                                              6710 


----------------------- Page 19-----------------------

necessitate the conclusion that McKitrick suffered from an underlying mental condition 



that   presumably       permanently      prevented     him   from    performing      his  job.   Notably, 



Dr. Rodgers, who opined that McKitrick could return to work if he could discontinue use 



of opiate pain medications, nonetheless concluded that McKitrick did not suffer from a 



mental condition that rendered him presumably permanently disabled. 



                 Finally, even had McKitrick successfully met his burden of demonstrating 



that   his   mental   condition   was   sufficiently   disabling,   the   ALJ   also   determined   that 



McKitrick   had   not   met   his   burden   of   demonstrating   that   his   mental   condition   was 



presumably permanent.           The record contains little evidence regarding   the presumed 



permanency of McKitrick's mental condition, and McKitrick does not directly address 



this finding on appeal.       Even Dr. Nassar, the sole physician who believed McKitrick's 



mental condition prevented him from returning to work, declined to state if McKitrick's 



mental condition was presumably permanent. 



                 Because McKitrick bore the burden of proving that his mental condition 



was sufficiently disabling and because the ALJ's conclusion need only be supported by 



"substantial   evidence,"   the   ALJ's   decision   is   subject   to   a   very   minimal   standard   of 

review.23     There   need   only   be   substantial   evidence   to   allow   a   reasonable   mind   to 



conclude McKitrick did not meet his burden.24  Given that the ALJ determined McKitrick 



lacked     credibility   when    dealing    with   his  health    care  providers,     and   therefore   his 



subjective   complaints   of   pain      were   not   credible,   and   that   five   physicians   thought 



McKitrick could return to work, we conclude that substantial evidence supported the 



ALJ's conclusion that McKitrick did not meet his required burden of proving a mental 



disability. 



        23       See Rhines v. State, 30 P.3d 621, 629 (Alaska 2001). 



        24       Id. 



                                                   -19-                                                 6710 


----------------------- Page 20-----------------------

V.      CONCLUSION 



               Because the ALJ's written findings were sufficiently detailed to support her 



conclusions,   and   because   substantial   evidence   supported   the   ALJ's   conclusion   that 



McKitrick's mental condition did not amount to an occupational or nonoccupational 



disability, we AFFIRM the superior court's decision to uphold the ALJ's order. 



                                               -20-                                         6710
 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC