FSM SUPREME COURT TRIAL DIVISION

CIVIL ACTION NO. 2015-028

BILLY SEIOLA,				)					
)
Plaintiff,			)
)
vs.					)
)
FEDERATED STATES OF MICRONESIA	)
SOCIAL SECURITY ADMINISTRATION,	)
)
Defendant.			)
__________________________________________	)

	ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

	Beauleen Carl-Worswick
	Associate Justice

	Hearing:  January 14, 2016
	Decided:  March 30, 2017

APPEARANCES:

For the Plaintiff:	Danally Daniel, Esq.
Belsipa Mikel-Isom, Esq.
Micronesian Legal Services Corporation
P.O. Box 129
Kolonia, Pohnpei FM 96941

For the Defendant:	Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Civil Procedure  Summary Judgment  Grounds
Under FSM Civil Rule 56, a motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue about any material fact and that the moving party is entitled to a judgment as a matter of law.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 208 (Pon. 2017).

Civil Procedure  Summary Judgment  Procedure
Once the party moving for summary judgment presents a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing that a genuine issue of material fact remains for resolution.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 209 (Pon. 2017).

Administrative Law  Judicial Review; Social Security  Claims and Benefits
Anyone aggrieved by a Social Security Board final order may obtain a review of that order in the FSM Supreme Court trial division by filing in court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part.  The court may order the Board to take additional evidence in such manner and upon such conditions as the court considers proper, and the Board may thereafter modify its findings and order.  The court’s judgment on the record is final, subject to review by the FSM Supreme Court appellate division upon petition of any aggrieved party, including the Board, filed within 60 days from judgment.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 209 (Pon. 2017).

Administrative Law  Judicial Review
On an appeal from an FSM administrative agency, the court, under the Administrative Procedures Act, must hold unlawful and set aside agency actions and decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or contrary to constitutional right, power, privilege, or immunity; or without substantial compliance with the procedures required by law.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 209 (Pon. 2017).

Administrative Law  Administrative Procedures Act; Social Security
The Administrative Procedures Act provisions apply to all agency action unless Congress by law provides otherwise, and it applies to the Social Security Administration appeals because no part of the Social Security Act provides otherwise.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 209 (Pon. 2017).

Social Security  Claims and Benefits
Under 53 F.S.M.C. 603(6) and FSM Social Security Regulation § 100.2 as amended in 2012, disability is defined as the inability to engage in any substantial gainful employment by reason of any physical or mental impairment that can be expected to last for a continuous period of not less than 12 months.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 209 (Pon. 2017).

Social Security  Claims and Benefits
A five-step sequential evaluation process is used to determine an applicant’s eligibility for disability benefits.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 210 (Pon. 2017).

Social Security  Claims and Benefits
Social Security may deny a disability benefits application when the applicant is able to perform light and sedentary work.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 211-12 (Pon. 2017).

Social Security  Claims and Benefits
Once a disability applicant meets the burden of proof under the first four requirements of the five-step sequential evaluation process, the burden shifts to Social Security to show that the applicant can perform other jobs  Social Security must show that employment positions are available in the FSM that suit the applicant’s experience and education before the denial of benefits can be upheld.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 212 (Pon. 2017).

Civil Procedure  Summary Judgment  Grounds  Particular Cases; Social Security
Summary judgment will be denied when there is a genuine issue of material fact to be determined through trial on the issue of light work available to the disability applicant, and because of the conflicting findings in the reports, abstracts, and testimonies on the applicant’s disability.  Seiola v. FSM Social Sec. Admin., 21 FSM R. 205, 213 (Pon. 2017).

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	COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

	I.  Background

On September 16, 2015, the defendant, Federated States of Micronesian Social Security Administration (herein "FSMSSA") filed a Motion for Summary Judgment in this matter.  The plaintiff, Billy Seiola (herein "Seiola") entered an Opposition to Defendant’s Motion for Summary Judgment on October 30, 2015.  A Reply Supporting Motion for Summary Judgment was filed by the FSMSSA on November 5, 2015.

A hearing on the pending motions was held on January 14, 2016.  Danally Daniel, Esq., and Belsipa Mikel-Isom appeared on behalf of Seiola, and the FSMSSA was represented by Steven V. Finnen, Esq.  After considering the filings and the arguments made during the hearing, the court finds that there are remaining issues of material facts, and denies the defendant’s summary judgment motion.

	II.  Facts

Billy Seiola was employed by the FSM Telecommunication Corporation (herein "Telecom") as a Technician from 1998 to 2014.  Part of Seiola’s duties were to install and repair telephones lines.1  In 2006, Seiola, who is right handed, fell from a two (2) story building, resulting in substantial injury to his left arm.  Seiola received treatment at the Pohnpei State Hospital before being referred to Capital Medical Center in the Philippines, where an operation was performed on his arm.2

Upon his return from the Philippines in 2006, Seiola resumed his employment with Telecom, and eventually applied for disability benefits on August 18, 2014.  On September 3, 2014, John Vanderburgh, a disability examiner for the FSMSSA based in Guam, issued a recommendation to Administrator Alexander Narruhn to deny Seiola’s disability claim, concluding that Seiola should be able to perform light or sedentary work.3

Seiola’s application for disability benefits was denied by FSMSSA on October 1, 2014.4  On October 14, 2014, Dr. Antonio Tan of Genesis Hospital in Pohnpei issued a Clinical Abstract recommending that Seiola seek medical retirement.  An administrative hearing was held on April 2, 2015, where the testimonies of Seiola, Dr. Tan, and Ludrick Edward, administrative officer for Telecom, was received into evidence and entered as part of the record.

John Vanderburgh submitted a reassessment of this matter on April 29, 2015 confirming his previous findings.  The FSMSSA upheld the denial of disability benefits on May 14, 2015.  On May 9, 2016, Seiola entered a Supplemental Filing from the Individual Assurance Company (IAC) waiving his premium benefits, which confirmed his disability according to IAC, and a reply was filed by the defendant on May 12, 2016.

	III.  Standard of Review

Under FSM Civil Rule 56, a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."  FSM Civ. R. 56(c); Kyowa Shipping Co. v. Wade, 7 FSM R. 93, 95 (Pon. 1995); Kihara Real Estate, Inc. v. Estate of Nanpei, 6 FSM R. 48, 52 (Pon. 1993).

Once the party moving for summary judgment presents a prima facie case of entitlement to summary judgment, the burden shifts to the non-moving party to produce evidence showing that a genuine issue of material fact remains for resolution.  Urban v. Salvador, 7 FSM R. 29, 31 (Pon. 1995); Kyowa Shipping Co., 7 FSM R. at 95; FSM v. Ponape Builders Constr., Inc., 2 FSM R. 48, 52 (Pon. 1985).

Any person aggrieved by a final order of the Board may obtain a review of the order in the Trial Division of the Supreme Court of the Federated States of Micronesia by filing in Court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part.  A copy of the petition shall be served on the Board, by service on its secretary or other designated agent, and thereupon the Board shall certify and file in Court a copy of the record upon which the order was entered.  The findings of the Board as to the facts, if supported by competent, material, and substantial evidence, shall be conclusive.  If either party applies to the Court for leave to adduce additional material evidence and shows to the satisfaction of the Court that there were reasonable grounds for failure to adduce the evidence in the hearing before the Board or its authorized representatives, and that such evidence is competent, material, and substantial, the Court may order the additional evidence to be taken by the Board and to be adduced upon the hearing in such manner and upon such conditions as the Court considers proper.  The Board may modify its findings and order after receipt of further evidence together with any modified or new findings or order.  The judgment of the Court upon the record shall be final, subject to review by the Appellate Division of the Supreme Court upon petition of any aggrieved party, including the Board, within 60 days from judgment.  53 F.S.M.C. 708.

On an appeal from an FSM administrative agency, the court, under the Administrative Procedures Act, must hold unlawful and set aside agency actions and decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or contrary to constitutional right, power, privilege, or immunity; or without substantial compliance with the procedures required by law.  These Administrative Procedures Act provisions apply to all agency action unless Congress by law provides otherwise and it applies to the Social Security Administration appeals because no part of the Social Security Act provides otherwise.  Alokoa v. FSM Social Sec. Admin., 16 FSM R. 271, 276 (Kos. 2009).

	IV.  Discussion

Disability and the 5 step sequential evaluation process

Pursuant to 53 F.S.M.C. 603 (6) and § 100.2 of the FSM Social Security Regulations as amended in 2012, disability is defined as "inability to engage in any substantial gainful employment by reason of any physical or mental impairment determined by medical evidences provided, which can be expected to last for a continuous period of not less than 12 months."5

Here, there is no question that Seiola suffered permanent damage to his left arm during the fall, nor is it disputed that he could no longer perform his duties as a Technician.  The denial of Seiola’s application for disability benefits by the FSMSSA was based on the finding that he can still perform light and sedentary work, and is thus not "disabled" as defined in Title 53 of the FSM Code.  Because there is limited case law in the FSM regarding disability benefits, we look to sources from United States as guidance.  In re Panuelo, 15 FSM R. 640, 641 (Pon. 2008); Porwek v. American Int’l Co. Micronesia, 8 FSM R. 463, 466 n.1 (Chk. 1998).

20 C.F.R. § 404.1520, as cited in Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119, 126 (1987), sets forth a 5 step sequential evaluation process to determine an applicant’s eligibility for disability benefits.  The 5 step process is as follows:

(i) At the first step, we consider your work activity, if any.  If you are doing substantial gainful activity, we will find that you are not disabled.

(ii) At the second step, we consider the medical severity of your impairment(s).  If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.  (See paragraph (c) of this section.)6

(iii) At the third step, we also consider the medical severity of your impairment(s).  If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled.7

(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work.  If you can still do your past relevant work, we will find that you are not disabled.

(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work.  If you can make an adjustment to other work, we will find that you are not disabled.  If you cannot make an adjustment to other work, we will find that you are disabled.

In his Opposition to Motion for Summary Judgment, Seiola analyzes the 5 step process.  Pl.’s Opp’n to Mot. for Summ. J. at 5-9.  In its Reply Supporting Motion for Summary Judgment, the FSMSSA challenges steps 2 and 3, arguing that Seiola’s medical condition is not severe and the ailment is not a listed impairment.  Def.’s Reply Supporting Mot. for Summ. J. at 6.

Under step 2 of the 5-part test, the evidence is clear that the plaintiff has suffered permanent damage to his upper left arm resulting in pain and discomfort with limited mobility that will affect him for the rest of his life, as well as the inability to perform his duties as a Technician.  The court finds that the plaintiff’s medical impairment is severe.

Under step 3, pursuant to 20 C.F.R. pt. 404, subpt. P, App. 1, Seiola argues that his injury is covered under § 1.02, which states

Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s).

Pl.’s Opp’n to Mot. for Summ. J. at 7.

The record supports the plaintiff’s argument under the 3rd step of the sequential evaluation process because the pain has been persistent since the injury occurred and is likely to continue, and it is undisputed that Seiola no longer has a full range of motion in his injured arm.  Because the FSMSSA disputes only the 2nd and 3rd requirements, material facts remain as to the other requirements under the evaluation process.

Light and Sedentary Work

The FSMSSA denied Seiola’s application for benefits based on his ability to perform light and sedentary work.  In Dellolio v. Heckler, 705 F.2d  123, 126 (5th Cir. 1983), the U.S. Court of Appeals defined "light work" as

involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.  Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or one that involves sitting most of the time with some pushing and pulling of arm or leg controls.  To be considered capable of performing a full or wide range of light work you must have the ability to do substantially all of these activities.  If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

Id.

The testimony of Ludrick Edward shows that Telecom attempted to find a job for Seiola where light work could be done, but no vacancies were available.  The plaintiff also submitted employment applications to both Pohnpei and FSM Personnel offices, and to date, no jobs are available that corresponds to Seiola’s experience and qualifications.  Pl.’s Opp’n to Mot. for Summ. J. at 8-9.

Referring back to the 5 step sequential evaluation process, assuming that the plaintiff meets the burden of proof under the first 4 requirements, the burden would shift to the FSMSSA to show that the plaintiff can perform other jobs.  In Baxla v. Colvin, 45 F. Supp. 3d 1116, 1125 (D. Ariz. 2014) the court held

If a claimant meets steps one and two, she may be found disabled in two ways at steps three and four.  At step three, she may prove that her impairment or combination of impairments meets or equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of 20 C.F.R. pt. 404.  20 C.F.R. § 404.1520(a)(4)(iii).  If so, the claimant is presumptively disabled.  If not, the ALJ determines the claimant's RFC.  At step four, the ALJ determines whether a claimant's RFC precludes her from performing her past work.  20 C.F.R. § 404.1520(a)(4)(iv).  If the claimant establishes this prima facie case, the burden shifts to the government at step five to establish that the claimant can perform other jobs that exist in significant number in the national economy, considering the claimant’s RFC, age, work experience, and education.  If the government does not meet this burden, then the claimant is considered disabled within the meaning of the Act.

Id.

In the present matter, the FSMSSA would have to show that employment positions are available in the FSM that suit the plaintiff’s experience and education before the denial of benefits can be upheld, which is another issue of fact that exists in this matter.

Conflicting Reports

In support of its Motion for Summary Judgment, the FSMSSA submitted the Clinical Abstract from Dr. Tan dated October 14, 2014, and the reports from John Vanderburgh issued on September 3, 2014 and April 29, 2015.  Also entered into evidence is the plaintiff’s Supplemental Filing on May 9, 2016 regarding a letter from IAC (Individual Assurance Company) finding Seiola as disabled, and the testimony of Ludrick Edward as part of the administrative record.

The findings in the Vanderburgh reports is that although the plaintiff has a severe medically determinable impairment, he can still perform light work and is not deemed disabled.8  In contrast, a review of the abstract of Dr. Tan recommends that Seiola seek medical retirement.  On the administrative record, Dr. Tan states "I recommend that he is claiming medical retirement in that field of work, I did not recommend him to shift to other jobs."  The court notes that Dr. Tan has physically treated and observed Seiola’s condition, whereas Vanderburgh’s findings are based on a review of the record and documentary evidence.

The letter from IAC to Seiola, dated May 3, 2016, is a waiver of premium payments until May 12, 2017.  As confirmed in the testimony of Ludrick Edward, the IAC letter confirms that Seiola is considered medically disabled.9  Ludrick Edward, as the administrative officer for Telecom who also has first-hand knowledge of Seiola’s injury, work performance, and has observed Seiola over an extended period of time, has also recommended medical retirement for the plaintiff.

The court finds that the conclusions of these reports, abstracts, and testimony to be contradicting, thus, creating a genuine issue of material fact to be determined through trial.

	V.  Conclusion

Accordingly, the defendant’s Motion for Summary Judgment is hereby denied.  The parties shall be prepared for Trial on the sequential evaluation process, the issue of light work available to the plaintiff, and the conflicting findings on the reports, abstracts, and testimonies on the plaintiff’s disability.  The parties shall confer and submit to the court three (3) recommended Trial dates within ten (10) days of being served with this Order.

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