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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
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.
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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
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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.
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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).
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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.
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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).
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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
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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,
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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
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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...)
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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...)
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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.
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"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)).
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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)).
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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
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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
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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).
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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.
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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.
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