Brown v. Adult & Family Services Division , 75 Or. App. 98 ( 1985 )

YOUNG, J.

Claimant petitions for review of a final order of the Adult and Family Services Division that terminated his General Assistance (GA) benefits. The issue is whether there is substantial evidence in the record to support the agency action. ORS 183.482(8)(c).¹ We hold that the evidence does not support the termination of claimant’s benefits and reverse the order.²

An individual must be “unemployable” in order to be eligible for benefits. OAR 461-05-311 provides:

“(1) A person is considered unemployable when a short-term diagnosed physical or mental incapacity as certified by a licensed medical professional specified in rule 461-05-315 prevents the person from engaging in any type of gainful employment. The condition must be expected to last for a period of 60 days or more from the date of request * * *.

“(2) A person will not be considered unemployable if there is any work a person can do which will not jeopardize his or her physical or mental condition, regardless of whether work is available and regardless of location. Social factors such as training, education, and place of residence will not be considered.”

Claimant began receiving benefits in January, 1982. AFSD determined claimant to be eligible on the basis of an employment evaluation report by Dr. Dixon, claimant’s treating psychiatrist, that claimant was unemployable due to chronic depression. Claimant continued to receive benefits for the next 18 months. He periodically submitted new medical reports by Dixon in order to verify his continued mental impairment. In July, 1983, claimant’s case was reviewed by an AFSD Medical Review Team, which determined that he continued to be eligible for benefits on the basis of a medical evaluation report from Dixon and a report from Dr. Belleville. Both doctors stated that claimant was unemployable due to chronic anxiety and depression.

On September 13, 1983, AFSD referred claimant to Dr. Eason, a psychiatric resident at the Oregon Health Sciences University Hospital. Eason’s report states:

“[Claimant] appears to be suffering from a major affective disorder that is recurrent and possibly superimposed upon a more lifelong character disorder of avoidant nature. He currently displays marked psycho-motor retardation, and anhendonia, constant fatigue, feelings of self-reproach, and intense, persistent and prominent depression and anxiety.”

He concluded that claimant should be certified as unemployable. The MRT reviewed Eason’s report and, on October 12, 1983, decided that claimant’s GA benefits should be terminated, because:

“There does not appear to be any evidence of psychotic behavior, or any sufficient specific data to support total unemployability per GA criteria, based on his depression. MRT feels that [claimant] could benefit from therapy and antidepressants, however, this could be managed along with employment.”

In making its conclusion, the MRT apparently reviewed only the psychiatric evaluation performed by Eason. The MRT report indicates that the MRT was aided by a psychiatric consultant; however, that consultant was not named. Claimant, representing himself, testified at the hearing as to his mental problems, including depression, anxiety, memory lapses and difficulty with concentration. Claimant’s testimony was entirely consistent with the medical opinions of his doctors that he was unemployable.

After the hearing, an additional report from Dr. Bennett, claimant’s treating psychiatrist at the time of the hearing, was submitted and was included in the hearings officer’s review of the evidence. In Bennett’s opinion, claimant had “significant psychiatric problems” that would prevent him from seeking or maintaining employment for at least another six months. The hearings officer concluded that, although the evidence tended to establish that claimant had numerous psychological problems, those problems were not so overwhelming that they would prevent him from engaging in “all types of employment.” The hearings officer’s conclusion was adopted by AFSD.

The issue is whether the MRT report is “substantial evidence.” The report is the only evidence in the record which supports the hearings officer’s conclusion.³ Substantial evidence means “any reasonable evidence or such proof as a reasonable mind would employ to support a conclusion.” Cook v. Employment Division, 47 Or App 437, 441, 614 P2d 1193 (1980). We hold that, in view of the whole record in this case, the MRT report is neither reasonable evidence nor proof which a reasonable mind would use to reach the conclusion that claimant was not entitled to benefits. Although the report indicates that a psychiatric consultant was employed in this case, that consultant was undisclosed, was not cross-examined, did not meet with claimant and, as far as the report indicates, relied entirely on the psychiatric evaluation of Eason.

Reversed and remanded for reconsideration.

1 ORS 183.482(8) (c) provides:

“(c) The court shall set aside or remand the order if it finds that the order is not supported by substantial evidence in the record.”

2 This determination makes it unnecessary for us to decide the remaining assignments of error.

3 We have expressed our concern about whether MRT reports are admissible evidence at all in hearings of this nature. See Kuykendall v. AFSD, 70 Or App 526, 530 n 2, 690 P2d 517 (1984).