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
...