FSM SUPREME COURT TRIAL DIVISION
Cite as Clarence v. FSM Social Sec. Admin.
13 FSM Intrm. 150 (Kos. 2005)

[13 FSM Intrm. 150]

JOHN CLARENCE,
Plaintiff,
 
vs.
 
FSM SOCIAL SECURITY ADMINISTRATION,
Defendant.
 
CIVIL ACTION NO. 2003-2008
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: February 11, 2005

[13 FSM Intrm. 151]

APPEARANCES:

For the Plaintiff:                 Sasaki L. George, Esq.
                                           Micronesian Legal Services Corporation
                                           P.O. Box 38
                                           Tofol, Kosrae FM 96944
 
For the Defendant:           Michael J. Sipos, Esq.
                                          P.O. Box 2069
                                          Kolonia, Pohnpei FM 96941

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HEADNOTES

Administrative Law ) Judicial Review; Social Security
     An appeal under 53 F.S.M.C. 708 to the FSM Supreme Court trial division from a Social Security Board final order is on the record except when a person aggrieved by such an order makes a showing that there were reasonable grounds for failure to adduce the evidence in the hearing before the Board or its authorized representatives. In that event, the party may apply to the court for leave to adduce additional material evidence. When no such showing is made of a reasonable failure to elicit evidence, the question that remains is whether the Board’s final order rests on findings of fact that are supported by competent, material, and substantial evidence. If the court so concludes, then the findings of fact are conclusive. The trial court’s disposition of the appeal on the record is final, subject to review by the Supreme Court appellate division. Clarence v. FSM Social Sec. Admin., 13 FSM Intrm. 150, 152 (Kos. 2005).
 
Administrative Law ) Judicial Review; Social Security
     Although, it would have been desirable for the claimant to have undergone vision testing as contemplated by the Board, the question under 53 F.S.M.C. 708 is whether there are now facts of record, supported by competent, material, and substantial evidence, sufficient for the findings of the Board to be deemed conclusive and when on a review of the record, the court finds that there is sufficient evidence in the record to deny the disability claim, it will affirm the Board’s final decision in its entirety. Clarence v. FSM Social Sec. Admin., 13 FSM Intrm. 150, 153 (Kos. 2005).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

     This case comes before the court on an appeal pursuant to 53 F.S.M.C. 708 of the October 21, 2003 final decision of the Board of the FSM Social Security Administration ("the Board"), which denied the application of the plaintiff John Clarence ("Clarence") for disability benefits. The basis for Clarence’s disability claim is that he is diabetic and suffers from a diabetes related vision problem in that he is not able to see clearly. The October 21, 2003, decision was itself a determination on appeal pursuant to 53 F.S.M.C. 203 of the November 25, 2002 initial decision of the FSM Social Security Administration ("FSMSSA") denying Mr. Clarence’s claim. The initial determination was in turn based in part on the July 21, 2002 disability assessment made by Donald Austin ("Austin"), a disability examiner. That assessment, pertinent portions of which are set out further herein, found that Clarence was not limited from performing a "full range of light work" notwithstanding his vision limitations.

[13 FSM Intrm. 152]

     An appeal under 53 F.S.M.C. 708 to the trial division of the FSM Supreme Court from a final order of the Board is on the record except where a person aggrieved by such an order makes a showing that "there were reasonable grounds for failure to adduce the evidence in the hearing before the Board or its authorized representatives." In that event, the party may "appl[y] to the court for leave to adduce additional material evidence." Id. Where no showing is made of a reasonable failure to elicit evidence, the question that remains is whether the final order of the Board rests on findings of fact that are "supported by competent, material, and substantial evidence." Id. If the court so concludes, then the findings of fact are "conclusive." Id. The disposition by the trial court of the appeal on the record is final, subject to review by the appellate division of the Supreme Court. Id.

     By order of September 22, 2004 [Clarence v. FSM Social Sec. Admin., 12 FSM Intrm. 635 (Kos. 2004)], this court found that Clarence had made no showing that additional material evidence should be made part of the record. The court directed that the appeal would proceed on the record as it now stands, and further directed Clarence to brief the issue whether the record supports the Board’s October 21, 2003, decision. Clarence was to submit that briefing on or before October 5, 2004. On October 6, 2004, Clarence moved for an enlargement of time to file his brief. That motion, made after the time for submitting the brief had elapsed, was denied on the basis that excusable neglect for failing to file the brief had not been demonstrated. [Clarence v. FSM Social Sec. Admin., 13 FSM Intrm. 34 (Kos. 2004).] The Board originally had until October 25, 2004, to file a response to Clarence’s brief, but when Clarence’s motion for an enlargement was denied, the court gave the Board until November 15, 2004, to file any further comments it might have. The Board filed nothing at that time.

     Thereafter the court reviewed the record on appeal, and requested clarification of the date of the report about Clarence’s condition prepared by a second disability examiner, Grace Kawamura ("Kawamura"). The date of the report is April 19, 2004, whereas the final decision of the Board denying Clarence’s application for disability benefits is dated October 21, 2003, or approximately six months before Kawamura’s report. Thus it appeared to the court that the Board could not have considered the report when it denied Clarence’s request for benefits, and that the report should not be considered as part of the "competent, material, and substantial evidence" required under 53 F.S.M.C. 708 to sustain the Board’s findings. In response to this concern of the court, the FSMSSA filed on January 7, 2005, an advice to the court in which FSMSSA Administrator Alexander Narruhn ("the Administrator") explains in his affidavit that after the initial denial of benefits, he had contacted Kawamura, who had provided to him an oral assessment consistent with Austin’s report, i.e., that Clarence’s application should be denied. He then in turn provided the substance of the report orally to the Board. The minutes of the October, 2003, Board meeting note that "the case remains denial [sic] after the second Disability Examiner’s review." Thus the Board considered the Administrator’s oral report of Kawamura’s oral findings in reaching its final decision of October 21, 2003. After Clarence initiated litigation, the Administrator asked Kawamura to reduce her findings to writing, which she did on April 19, 2004.

     The court will not consider Ms. Kawamura’s report as part of the record in this matter, since it is not clear exactly what was presented orally. Also, six months elapsed between the time that the Administrator orally presented Kawamura’s findings to the Board and the preparation of the written report.

     The court turns to the question whether the October 21, 2003 final decision of the Board is "supported by competent, material, and substantial evidence" as required under 53 F.S.M.C. 708. The court considers the record filed on August 31, 2004, but excluding Kawamura’s April 19, 2004, disability report.

     The first disability assessment prepared on July 21, 2002, by Austin found in part as follows:

[13 FSM Intrm. 153]

[S]ever diabetic neuropathy and decreased vision is noted. We are unable to obtain visual acuity for this claimant because there are no optometry services in Kosrae. Consequently, we are unable to use the visual acuity provided because we [sic] his vision may improve with eyeglasses. There is no evidence of any other impairment.

. . . We are unable to evaluate the claimant’s visual status because we are unable to obtain corrected visual acuity. Once that is obtained, the case should be returned for further consideration.

The claimant’s Diabetic Retinopathy and Neuropathy would prevent him from lifting more than 50 pounds occasionally and more than 25 pounds occasionally. Additionally, there are postural limitations which would further limit the claimant to not more than light work. The claimant’s past work as a Bus Driver is considered medium in exertional level. With the uncertain visual limitation, it is nevertheless, precluded.

Although the claimant could not be expected to perform his past work as a Bus Driver because of the visual limitations which are clouded by the inability to obtain accurate vision assessment, the claimant is not precluded from a full range of light work.

(emphasis added). Austin notes Clarence’s visual limitation, and also the fact he was unable to obtain Clarence’s corrected visual acuity. But elsewhere the record does include information about Clarence’s corrected vision. The September 26, 2001, disability report prepared by the FSMSSA’s branch manager notes that Clarence had no observable difficulty reading with glasses. Thus as of the time of Clarence’s vision was correctable to this degree. While the minutes of the Board’s April, 2003 meeting provide that ""FSMSSA Kosrae Branch shall ensure the claimant [i.e., Clarence] to undergo an eye examination with the next visiting team to Kosrae this June 2003," this was not done evidently because, as stated in a July 16, 2003 letter to the Board from Clarence’s counsel, the June 2003 visit did not occur. That letter went on to request "a clear and definite decision on the merit of the case."

     It would have been desirable for Clarence to have undergone vision testing as contemplated by the April, 2003 Board minutes. However, the question under 53 F.S.M.C. 708 is whether there are now facts of record, supported by competent, material, and substantial evidence, sufficient for the findings of the Board to be deemed conclusive. Based on the foregoing review of the record, the court finds that there is sufficient evidence in the record to affirm the October 21, 2003 final decision of the Board.

     Accordingly, the October 21, 2003, final decision of the Board denying Clarence’s claim for disability is affirmed in its entirety. Judgment issues herewith.

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