M.R v. DIVISION OF DEVELOPMENTAL DISABILITIES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1764-07T21764-07T2

M.R.,

Appellant,

v.

DIVISION OF DEVELOPMENTAL

DISABILITIES,

Respondent.

__________________________

 

Submitted December 1, 2008 Decided

Before Judges Reisner and Alvarez.

On appeal from the Division of Developmental Disabilities, Department of Human Services.

New Jersey Protection & Advocacy, Inc., attorneys for appellant (Susan W. Saidel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Gail R. Beran, Deputy Attorney General, on the brief).

PER CURIAM

M.R. appeals a final agency decision by the Assistant Commissioner of the Department of Human Services, Division of Developmental Disabilities (the Division) finding him ineligible for agency services. We affirm.

In order to be found eligible for Division services, M.R. had to establish by the preponderance of the credible evidence that he is substantially functionally impaired in at least three of six areas:

i. Self-care;

ii. Receptive and expressive language;

iii. Learning;

iv. Mobility;

v. Self-direction; and/or

vi. Capacity for independent living or

economic self-sufficiency.

[N.J.A.C. 10:46-1.3.F]

Persons with a severe, chronic disability that causes substantial functional limitation in three of the six categories are considered "developmentally disabled" within the meaning of N.J.S.A. 30:6D-25(b), so long as other threshold requirements are met.

Pursuant to N.J.A.C. 10:46-4.2(d), M.R. bears the burden of proof and the burden of persuasion on this appeal. He disputes the agency's determination that he has the capacity to function in three areas: learning, receptive and expressive language, and capacity for independent living or economic self-sufficiency. As set forth in his brief, he contends:

POINT I

DDD'S DECISION IS ARBITRARY AND CAPRICIOUS

A. DDD ARBITRARILY AND CAPRICIOUSLY RELIED

ON SPECULATION OF M.R.'S FUTURE

FUNCTIONAL CAPACITY TO DETERMINE PRESENT

ELIGIBILITY

B. DDD'S HOLDING THAT M.R. MAY NOT CHALLENGE

THE CONCLUSIONS OF DDD'S EVALUATION IS

ARBITRARY AND CAPRICIOUS

C. DDD'S DECISION IS ARBITRARY AND

CAPRICIOUS BECAUSE IT IS NOT SUPPORTED BY

SUBSTANTIAL EVIDENCE

POINT II

THE FINAL AGENCY DECISION CONTAINS AN ERROR IN LAW

I.

M.R. is twenty-three years old. His parents filed an application for services with the Division on his behalf on October 26, 2005. The Division intake team notified them on February 8, 2006, that M.R. was not eligible. M.R. contested the decision, and the Division, upon reconsideration, again determined that he was ineligible. M.R. appealed, and the matter was transmitted to the Office of Administrative Law on June 22, 2006. M.R.'s parents were appointed his legal guardians on August 24, 2006. After conducting a hearing, the Administrative Law Judge (ALJ) affirmed the agency decision on August 7, 2007. On November 5, 2007, the Assistant Commissioner of the Division adopted the factual findings and legal conclusions of the ALJ. This appeal followed.

II.

The following facts are gleaned from our review of the record. M.R.'s parents did not apply for services earlier in their son's life because they were unaware of the Division's existence. Their recent efforts arise from their concern about his well-being in the event that they are no longer able to care for him.

M.R. has an I.Q. of sixty-six, which would put him within the mild range of mental retardation, if such a diagnosis were based on I.Q. alone. A diagnosis of mental retardation, however, must be based on both below average I.Q. and below average adaptive behavior. M.R.'s parents home-schooled him from the fifth grade until age sixteen, at which time his education ended altogether. During his home-schooling, M.R. received some tutoring services from Cumberland County College and when he reached high school age, he expressed an interest in returning to school. M.R. took all the necessary examinations, but then changed his mind because he feared that other students would know more than he.

Over the years, M.R. has been diagnosed as suffering from a variety of conditions, including schizophrenia, autism, and dyslexia. He takes no medication. When M.R. was charged with a crime, he was found competent to stand trial in 2006 and, in fact, entered into a plea agreement and was placed on probation.

M.R. has never worked and currently receives social security income because of his learning disabilities. Prior to applying to the Division, he requested services from the Division of Vocational Rehabilitation Services (DVRS) and was referred to an occupational therapy center, which referral he did not accept. DVRS also recommended that he enroll in a GED class, but M.R.'s parents believed that this was not an acceptable alternative due to M.R.'s discomfort in groups. Ultimately, DVRS informed M.R.'s parents that it had no other options for him given his low level of cognitive functioning.

M.R. has had a driver's license since age seventeen. He took the exam orally and passed it the second time that he took it. Nonetheless, M.R.'s parents encourage him to always have another person present in the car when driving. If he gets lost, he calls his parents, whose number is programmed into his cell phone, as he is unable to read a map.

M.R.'s parents give him a daily allowance of five dollars because he does not manage money well. M.R. does purchase larger-ticket items, such as clothing, on his own, but is expected to bring home receipts when he does so. Defendant can fill out a check, but depends on his mother's written instructions in order to complete the task.

Among the services that they seek, M.R.'s parents want him to be supported in his efforts to obtain his G.E.D. and in acquiring literacy skills. The Division, however, does not provide these services.

M.R.'s application to the Division included his school and other records. The Division intake team determined, and it is undisputed, that M.R. is not physically impaired in any way, walks independently, performs independent gross and fine motor skill functions, and drives a car. He lights his own cigarettes. Although dyslexic, he is able to follow directions and aspires to become a mechanic. He has friends and engages socially with others. On a DVRS vocational aptitude evaluation, M.R. showed ability in the field of mechanics, and the intake team accordingly found his employment goals to be realistic.

III.

In rendering his decision, which was subsequently adopted by the Commissioner of the Division, ALJ Martone thoroughly analyzed the expert testimony and carefully reviewed the proofs presented by the parties, including M.R.'s school records, M.R.'s records from DVRS, and testimony by M.R.'s mother. M.R.'s expert witness was Dr. Paul Spangler, a Pennsylvania licensed psychologist employed by the City of Philadelphia in the area of services for the intellectually disabled. Dr. Spangler reviewed M.R.'s psychological and educational records dating back to 1993 and met with M.R. and his parents for several hours at their home. Dr. Spangler administered three tests, the Wechsler Adult Intelligence Scale Revised, the Vineland Adaptive Behavior Scale, Second Edition (VABS), and the Psychopathology Inventory in Mentally Retarded Adults (PIMRA).

Dorinda Taylor, a clinical psychologist employed by the Division for twenty-one years, testified as the Division expert. Taylor administered the Scales of Independent Behavior-Revised (SIB-R) to M.R. The SIB-R is a standardized test that measures adaptive skills and is routinely administered during the intake process. M.R. and his mother were both present when he took the SIB-R. Taylor explained that having a parent participate is helpful to corroborate information supplied by the applicant. At times, M.R.'s mother corrected the responses given by M.R., which, according to Taylor, was conduct also within the test parameters. Taylor also reviewed school records and DVRS records.

IV.

Once an administrative agency issues a final decision, our review is limited. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We survey the record only to determine whether there is sufficient credible competent evidence to support the agency conclusions. Ibid. Generally, we give "'due regard to the opportunity of the one who heard the witnesses to judge their credibility . . . and . . . [give] due regard also to the agency's expertise where such expertise is a pertinent factor.'" Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

The agency's decision should not be reversed unless it is "'arbitrary, capricious or unreasonable' or it is unsupported by 'substantial credible evidence in the record as a whole.'" In re Morrison, 216 N.J. Super. 143, 160 (App. Div. 1987) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Even if we would have come to a different result after evaluating the record, if "the evidence and the inferences to be drawn therefrom support the agency head's decision, then [the court] must affirm." Campbell v. N.J. Racing Comm'n., 169 N.J. 579, 587 (2001). Additionally:

If there is any fair argument in support of the course [taken by the agency] or any reasonable ground for difference of opinion among intelligent and conscientious officials, we are obliged to affirm. We also acknowledge our responsibility to defer to the expertise of the administrative agency charged with the duty of implementing the legislative plan.

[Rosen v. New Jersey Div. of Developmental Disabilities, 256 N.J. Super. 629, 642 (App. Div. 1992), certif. denied, 133 N.J. 440 (1993)(internal citations and quotations omitted).]

V.

We do not agree with M.R.'s contention that the Division's assessment of his functional capacity was based on possible future performance with support as opposed to present capability. We do not agree with M.R.'s further claim that the agency's decision was not supported by substantial evidence.

In reviewing the record, we note that Dr. Spangler concluded that M.R. was substantially functionally limited in the area of learning principally in reliance on M.R.'s current academic status of third grade skills in mathematics and first grade skills in reading. He pointed to M.R.'s difficulty in making change and printing or reading words with three letters as additional support for that conclusion.

Taylor's conclusion, based on the SIB-R and M.R.'s school records, differed substantially from Dr. Spangler's. Taylor considers M.R. to currently have the ability to learn as demonstrated by his non-academic functioning, such as his ability to cook simple meals and shop for his own clothing and groceries. She also found that M.R. obtained his driver's license on the second try and has the ability to work on cars and motorcycles. Admittedly, M.R. has made no academic progress since he left school, although some progress had been made up to that point.

After weighing the expert testimony, ALJ Martone found that M.R. had a demonstrated capacity to function in the area of learning, based on his academic progress as a child when in a school environment with specialized support, and his present ability to learn functional skills without such support. This conclusion, adopted by the Division, is not the equivalent of a mere finding that M.R. may be able to overcome his limits in the area of learning in the future with support.

As the ALJ opined, M.R.'s "current academic levels are confounded by the absence of an appropriate educational program being provided to [him] since fifth grade." But M.R.'s ability to perform a number of domestic tasks acquired over the years since he left school establish the present ability to learn without extensive support. In other words, he has a present ability to function in the area of learning, albeit not in the academic arena. This conclusion is supported by substantial credible evidence.

Next, the ALJ considered M.R.'s expressive and receptive language skills. Again, Dr. Spangler considered M.R.'s inability to perform certain tasks such as stating his phone number or address, as proof positive of substantial functional impairment in this area.

The school records showed, in contrast, that M.R.'s language skills progressed at normal rates. He presently speaks fluently and responds appropriately to questions, including those on job applications. M.R.'s ability to correctly answer questions on the driver's exam certainly supports the notion that he can understand and respond appropriately to the spoken word.

That M.R. can engage in appropriate reciprocal social interactions, which rely on speech, is corroborated by his ability to form and maintain friendships. The Division acknowledged that M.R.'s vocabulary is below age-level expectations, but he is nonetheless able, according to even his mother, to respond appropriately to questions. The conclusion that M.R. is not substantially functionally limited in the area of expressive and receptive language is also supported by ample credible evidence.

Finally, M.R.'s contention that he is substantially functionally limited in his capacity for independent living or economic self-sufficiency is not tenable. Dr. Spangler's testimony focused on the distinction between present accomplishments as opposed to M.R.'s potential for achievement. Dr. Spangler opined that if M.R. could accomplish more in the future with help, but is presently unable to function in that manner, he is not capable of independent living or economic self-sufficiency. So, for example, although M.R. can prepare simple meals, in Dr. Spangler's view, his current inability to prepare complex ones indicates functional impairment. Although he agreed that M.R. has the capacity to develop the skills necessary to live independently, he did not consider M.R. capable of dressing appropriately or of being punctual, as would be necessary for him to be employed. Dr. Spangler did agree that M.R. could learn the skills necessary to maintain employment.

The Division's proofs differed in this area as well. DVRS records reflected that M.R. would be employable after training. M.R. can use cooking appliances other than a microwave to make simple meals. He recognizes labels when food shopping, cleans his room, and does chores, although he has to be prodded into completing these tasks. He can match clothes and dress appropriately for the season. He can tell time to the quarter hour. Given these facts, we concur with the agency's conclusion that M.R. is not substantially functionally impaired in his capacity for independent living or economic self-sufficiency. That conclusion was also based on substantial credible evidence.

VI.

M.R. contends that it was error for ALJ Martone to reject the lengthy testimony given by M.R.'s mother as to why her answers to the SIB-R were "mistaken and incorrect." She contended that both M.R. and she overstated his capabilities. In other words, M.R. wants, as the ALJ characterized it, "a second opportunity to respond . . . so that he will be able to provide responses that are more favorable to his application for services."

The decision to admit or exclude evidence is a discretionary one. N.J.A.C. 1:1-15.1(c) provides that an ALJ "may, in his or her discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will either: (1) Necessitate undue consumption of time; or (2) Create substantial danger of undue prejudice or confusion." It was, therefore, well within the ALJ's discretion to exclude evidence that was irrelevant and not probative of the issues before him. This court should defer to such evidentiary rulings. Cf. State v. Morton, 155 N.J. 383, 453 (1998) (holding that "[t]raditional rules of appellate review require substantial deference to a trial court's evidentiary rulings"); State v. Carter, 91 N.J. 86, 106 (1982) (holding that "[w]hether the probative value of the evidence is outweighed by the potential prejudice is a decision left to the discretion of the trial judge" and that "the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion"). ALJ Martone's refusal to consider different answers to test questions was a reasonable exercise of discretion and was not error.

VII.

Lastly, M.R. contends that the final agency decision issued in error because the federal statute, 42 U.S.C.A. 15002(8)(A)(iv), which our enactment, N.J.S.A. 30:6D-25(b), is intended to track, created seven categories, instead of six. The federal statute separates independent living from economic self-sufficiency and treats them as different categories. We need not reach that issue as M.R. is not functionally impaired in any of the disputed categories.

Affirmed.

 

The nature of the offense is not specified in the record.

(continued)

(continued)

14

A-1764-07T2

RECORD IMPOUNDED

January 27, 2009