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Johnson v. Arizona Department of Economic Security

Court of Appeals of Arizona, First Division

July 9, 2019

JESSE JOHNSON, Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency, and, DES/DDD, Appellees.

          Appeal from the A.D.E.S. Appeals Board No. P-1561522-001-B

         VACATED AND REMANDED

          Lewis Roca Rothgerber Christie LLP, Phoenix By Justin J. Henderson Counsel for Appellant.

          Arizona Attorney General's Office, Phoenix By JoAnn Falgout Counsel for Appellee Arizona Department of Economic Security

          Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Chief Judge Peter B. Swann and Judge Diane M. Johnsen joined.

          OPINION

          Mc MURDIE, JUDGE.

         ¶1 Jesse Johnson appeals the Arizona Department of Economic Security's ("Department") decision denying his application for services from the Division of Developmental Disabilities ("DDD services"), and the Department has conceded possible error. We hold that to be eligible for DDD services, Arizona Revised Statutes ("A.R.S") section 36-551(19) requires that a disability manifest before a claimant turns 18, not that the disability be diagnosed before that time. We further hold that regardless of the origin of the impairment, a claimant need only prove a cognitive disability as defined by A.R.S. § 36-551(14). Thus, we vacate the Department's decision and remand for a determination of the DDD services that Johnson is eligible to receive.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Johnson is 39 years old and has suffered from severe medical and behavioral problems for more than 20 years. Beginning in his mid-teens, Johnson experienced several behavioral changes, marked by social withdrawal, depression, and disorganized thinking, including signs of a thought disorder. His grade-point average dropped significantly, and he never finished high school. Johnson has seen little to no improvement over the last 23 years and struggles to complete daily functions without supervision, including showering, cooking, cleaning, paying bills, and checking for mail.

         ¶3 In 2000, at 20 years old, Johnson underwent his first neuropsychological evaluation. Testing by Dr. James Youngjohn revealed a full-scale IQ of 59, and the neuropsychologist opined Johnson most likely suffered from schizophrenia. Dr. Youngjohn, however, also opined that "[a]nother possibility would be some form of neurologic disease such as some form of post encephalitic condition or perhaps some form of post toxic/metabolic encephalopathy." Later assessments showed Johnson's IQ remained low. It was measured at 70 in 2002 and 63 in 2015. Over the years, several doctors continued to report that Johnson likely suffered from multiple disorders that limited his life functions.

         ¶4 For example, in 2002, Dr. Youngjohn reaffirmed his conclusions of two years before. Also in 2002, Dr. Robert Crago, a licensed psychologist, evaluated Johnson and determined that he "presents with a significant and disabling symptom pattern," and "[m]ost prominent of his symptomatology are significant changes in his cognitive skills and emotional regulation." Dr. Crago reported:

Mr. Johnson's current clinical presentation suggests a mixed etiology. That is, by history he appeared to suffer some type of mental and emotional breakdown at age 16 involving a depressed mood with social withdrawal and even perhaps some psychotic features. However, upon being exposed to toxic mold his condition greatly worsened and the clinical picture became somewhat confused. I believe he was probably manifesting some signs of toxic encephalopathy confusing his emotional presentation.

         ¶5 In 2015, psychologist Dr. Raymond Lemberg evaluated Johnson and diagnosed him with: (1) mild neurocognitive disorder, with behavioral disturbance, due to traumatic brain injury; (2) mild neurocognitive disorder, due to another medical condition, i.e., mold exposure; and (3) schizoaffective disorder, by history. He reported Johnson "needs a great deal of help managing activities of daily living, as [his] mother visits him daily to assist him with these activities." One year later, psychologist Dr. Karen Sullivan examined Johnson and diagnosed him with neurocognitive disorder due to multiple etiologies and with schizoaffective versus schizophrenic disorder. She explained that after talking with Johnson's mother and reviewing the file, "it does appear that Mr. Johnson is unable to take care of his daily and essential activities without the help of family and that he will need ongoing support and care."

         ¶6 Johnson applied for DDD services, and the Department issued a notice denying eligibility in November 2015. After administrative review, the Department determined Johnson was ineligible for DDD services in part because he did not have a qualifying diagnosis before the age of 18. Johnson appealed the determination, and a hearing was held before an Administrative Law Judge ("ALJ").

         ¶7 At the hearing, Dr. Michael Gray, one of Johnson's treating physicians, testified he diagnosed Johnson with mixed mold mycotoxicosis. When asked whether he had "an opinion within a reasonable degree of medical certainty as to whether . . . [the] mold exposure [he] treated Jesse Johnson for had any effect on his neurocognitive functioning," Dr. Gray responded: "Yes. . . . He was compromised by the presence of the toxins and he remains compromised as a result of that . . . ." Dr. Gray testified Johnson "demonstrated neurocognitive decline . . . [and] was really compromised. His memory was compromised. His ability to think clearly and focus was compromised." Dr. Lemberg also testified he had diagnosed Johnson with neurocognitive disorder due to multiple etiologies. He testified "it's been 20 years since [Johnson] began to show dysfunction and . . . [he has] deteriorated over time . . . [and] just has very limited functioning. I do not believe that he is going to get better in any significant way."

         ¶8 The Division of Developmental Disabilities' medical director, Dr. Pamela Tom, a medical doctor, testified for the Department. She testified she did not believe there was evidence that toxic chemicals produced by mold can cause human illness, and that Johnson's symptoms "appear[ed] to [her] to be either schizoaffective disorder or schizophrenia." However, she agreed Johnson demonstrated a "sharp drop in cognitive functioning" that manifested before he turned 18 years old and that Johnson is likely not "able to function independently in activities of basic daily living."

         ¶9 After the hearing, the ALJ affirmed the denial of services. The ALJ found the evidence failed to show "that any developmental disability was a severe chronic disability attributable to cognitive disability; manifested before age 18; and [was] likely to continue indefinitely." See A.R.S. § 36-551(19).

         ¶10 Johnson petitioned the Department's Appeals Board to review the ALJ's decision. The Appeals Board found Johnson had substantial limitations in at least three areas of major life activity and that his condition was likely to continue indefinitely. It also found "the evidence clearly establishe[d] that [Johnson] has subaverage intellectual functioning." But the board "reject[ed] [Johnson's] arguments concerning the existence of a cognitive disability that manifested itself before the age of 18." The Appeals Board noted Johnson had presented no IQ test results or medical records predating his 18th birthday and explained, "[g]iven the lack of a consistent medical diagnosis and the lack of any diagnosis ...


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