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E.B. v. Division of Developmental Disabilities


December 10, 2008


On appeal from a final decision of the Division of Developmental Disabilities, HDD 2993-2006.

Per curiam.



Argued October 28, 2008

Before Judges Winkelstein and Fuentes.

Appellant, E.B., born on January 24, 1980, resides at the Trenton State Psychiatric Hospital. His diagnoses include schizoaffective bipolar disorder, attention deficit hyperactivity disorder, and polysubstance dependence. He appeals from a final decision by the Assistant Commissioner (the Commissioner) of the Division of Developmental Disabilities (the Division), determining that he was ineligible for Division services because he did not suffer from mental retardation before age 22. Affording the Division its traditional deference, and concluding that its decision is not manifestly mistaken, we affirm.

E.B. has behavioral difficulties and a low IQ. He is unable to live by himself. He dropped out of school during tenth grade, and has a history of alcohol and substance abuse, including the use of marijuana, cocaine and ecstasy. He was admitted to Trenton Psychiatric Hospital on September 1, 2004.

On October 25, 2004, E.B. applied to the Division for institutional services. The Division denied his application, stating that he did not meet the eligibility criteria under N.J.A.C. 10:46 because he did not have a developmental disability before age 22. E.B. appealed, and the case was transferred to the Office of Administrative Law for a hearing before an Administrative Law Judge (ALJ). At that hearing, both the Division and E.B. called expert witnesses to testify as to whether E.B. suffered from a developmental disability before he was 22 years old. The experts differed when interpreting the results of several IQ tests that had been administered to E.B. between the ages of 15 and 25.

At age 15, E.B. received an IQ score of 86 on a full-scale Wechsler Intelligence Scale for Children - Third Revision (WISCIII) test. At age 21, he scored 67 on a Wechsler Abbreviated Scale of Intelligence (WASI) test. At age 24, he received another IQ score of 67, this time on a full scale Wechsler Adult Intelligence Scale - Third Revision (WAIS-III) test. At age 25, he received an IQ score of 75 on a WASI test administered by the Division's expert, and an IQ score of 67 on a full-scale WAISIII test, administered by Dr. Norman Weistuck, E.B.'s expert.

Dr. Weistuck testified that E.B.'s test scores indicated mental retardation. The Division's expert, Dr. Charles Daalder, testified that the low scores were not attributable to mental retardation, but rather were the result of mental illness contributed to by E.B.'s substance abuse. Both experts, as well as E.B.'s parents, testified about E.B.'s functional limitations in six major life activities.

The ALJ found that E.B. did have the developmental disability of mental retardation before he was 22 years old, which entitled him to Division services. The Commissioner rejected the ALJ's decision, and concluded that E.B. was not eligible for services from the Division. E.B. appeals from that final agency decision.

Our standard of review of an agency decision is constrained. We will not reverse unless the decision is arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record. P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 529-30 (1995); Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973)). "If there is 'any fair argument in support of the course [taken by the agency] or any reasonable ground for difference of opinion among intelligent and conscientious officials,' [the court is] obliged to affirm." Rosen by Rosen v. N.J. Div. of Developmental Disabilities, 256 N.J. Super. 629, 642 (App. Div. 1992) (quoting Flanagan v. Civil Service Dept., 29 N.J. 1, 12 (1959)), certif. denied, 133 N.J. 440 (1993). "When an agency's decision is manifestly mistaken, however, the interests of justice authorize a reviewing court to shed its traditional deference to agency decisions." P.F., supra, 139 N.J. at 530.

To be eligible for Division services, an individual must have a developmental disability. N.J.S.A. 30:6D-25. The Division of Developmental Disabilities Act (the Act) defines a developmental disability as: a severe, chronic disability of a person which: (1) is attributable to a mental or physical impairment or combination of mental or physical impairments; (2) is manifest before age 22; (3) is likely to continue indefinitely; (4) results in substantial functional limitations in three or more of the following areas of major life activity, that is, self-care, receptive and expressive language, learning, mobility, self-direction and capacity for independent living or economic self-sufficiency; and (5) reflects the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services which are of lifelong or extended duration and are individually planned and coordinated. Developmental disability includes but is not limited to severe disabilities attributable to mental retardation, autism, cerebral palsy, epilepsy, spina bifida and other neurological impairments where the above criteria are met. [N.J.S.A. 30:6D-25b.]

The concomitant regulations state that the criteria for establishing the presence of mental retardation shall be an IQ score of less than 70, demonstrated as follows:

1. The person has an IQ score of 60 to 69; and

i. There is an impairment in adaptive behavior; and/or

ii. There is a chronic medical problem; and/or

iii. There is an impairment in behavioral, sensory or motor function and in the ability to perform basic skills; or

2. The person has an IQ score of 59 or below. [N.J.A.C. 10:46-2.1(h).]

For his mental retardation to be considered a developmental disability under the Act, E.B. must have met these criteria before the age of 22. N.J.S.A. 30:6D-25b(2). Mental illness is specifically exempt from the definition of developmental disability. N.J.A.C. 10:46-1.3.

E.B. has taken five IQ tests in his life. Two of those tests were administered before he reached age 22. In 1995, E.B. took his first IQ test at age 15, administered by a school psychologist, and scored an 86. At age 21, on an abbreviated test administered by an intern under the supervision of a psychologist at Monmouth Medical Center in 2001, he scored a 67. In 2004, at age 24, E.B. scored another 67; that test was administered by an intern under the supervision of a psychologist at Trenton Psychiatric Hospital. In 2005, at age 25, he received a 67 on a test administered by his expert, Dr. Weistuch, and a 75 on an abbreviated test (the same abbreviated version used when he was 21) administered by the Division's expert, Dr. Daalder.

In finding that E.B. was mentally retarded before age 22, the ALJ emphasized that Dr. Daalder's test was an abbreviated test, while "at least two of the three other separate experts/professionals nonetheless employed the full battery of tests, the results of all of which corroborate each other regarding the full scale testing status of E.B.'s I.Q. as being in the range of 67 in their respective testing times." The ALJ acknowledged that the test E.B. took when he was 21 was also an abbreviated version, but he placed the same weight on it as he did with the full scale tests administered after E.B. was 22.

The Commissioner rejected the ALJ's conclusions and determined that E.B. was not eligible for services because he was not mentally retarded before he turned 22. The Commissioner determined that E.B. did not meet the first, second and fourth factors of N.J.S.A. 30:6D-25b. In arriving at its decision, the Commissioner chose to afford substantial weight to the test provided to E.B. in 1995, when he was 15 years old, but gave much less weight to the "highly questionable" 2001 results. In doing so, the Commissioner observed the following:

The results of IQ tests are contingent upon many factors. Such factors range from who administers the test (a seasoned expert or a newly trained intern?) to what type of test is given (WAIS-III or WASI?) to what environmental factors are present (i.e., noise or other distractions in the testing area) and where the test is given (i.e., in a familiar setting or a setting the individual is not comfortable in?). These factors also include whether the individual is cooperative, the individual is on drugs or alcohol affecting the individual's abilities, and whether the individual has read the questions him/herself or whether the test taker assisted the individual with the questions on the test. We know that the test given by Ms. Hill in 1995 was completed in a facility familiar to E.B. (his school), and we have Ms. Hill's extensive notes about the test taking environment and E.B. while he was taking the test. On the contrary, in 2001 at Monmouth Medical Center, we only have the psychology intern's brief notes about E.B. prior to taking the test. We know from the intern's report that E.B. was at first reluctant to take the test but then acquiesced, and we know that throughout the testing, E.B.'s ". . . speech was pressured mildly at times and his thought content was predominated by his delusional beliefs about messages he receives from rappers which are related to patient becoming a famous musician. The messages that the patient described appear to be hallucinatory at times. Pt was alert and oriented, denied suicidal or homicidal ideation, and does not display insight regarding his delusional beliefs or auditory hallucinations."

In addition, we have no information about the test taking environment. We have no idea if E.B. was taking prescription drugs that would have affected his test taking ability, and it was highly likely that E.B. was on antipsychotic drugs as E.B. had only been in the psychiatric ward of Monmouth Medical Center for 20 days due to cannabis-induced psychotic disorder with delusions and schizoaffective disorder. Also, we do not know what the psychology intern's abilities were as a test administrator. For these reasons, in addition to the fact that E.B. was only given an abbreviated test, I have given much less weight to the highly questionable 2001 results.

The Commissioner also considered the testimony of E.B.'s parents, but did not afford significant weight to their testimony about E.B.'s disability before he turned 22. The Commissioner considered the New Jersey Supreme Court decision in T.H. v. Div. of Developmental Disabilities, 189 N.J. 478, 495 (2007), in which the Court recognized the relevant and probative value of relatives' testimony. Nevertheless, the Commissioner factually distinguished that case from E.B.'s circumstances, stating:

E.B.'s parents did not provide testimony about E.B.'s disability prior to age 22 except to say that he failed at the Easter Seals and HABCOR programs due to his mental illness, he had problems at school and created problems at school, he was never classified as mentally retarded by the school but he was classified as having Attention Deficit Disorder without Hyperactivity, and he was in special education classes . . . . None of this testimony proves that E.B. was mentally retarded with an IQ of under 70 prior to the age of 22 especially in light of the complete testing and reporting by the school psychologist when E.B. was 15 years old. During this same period E.B. had shown abilities not consistent with a person who is mentally retarded: E.B. had taken a driver's test and passed; he drove; he completed school through the 9th grade; there is no indication that he would not have graduated from high school had he not dropped out in the 10th grade; and he worked framing houses and as a stock clerk. In T.H. the Supreme Court heavily weighted the testimony of T.H.'s sister regarding T.H.'s disability prior to the age of 22 because T.H. was home schooled and there were no school or other records to examine. In addition, T.H. had been diagnosed with Asperger's Syndrome, a known developmental disability, and was not trying to prove "mental retardation" which requires, by law, an IQ test score of less than 70 to be eligible for services from DDD.

In sum, the Commissioner found that E.B. did not suffer from mental retardation before he turned 22, and that he was only substantially limited in two out of the six major life activities as described in N.J.S.A. 30:6D-25(b).

Though the evidence before the ALJ may be subject to different interpretations, it nonetheless supports the Commissioner's decision. The Commissioner noted that E.B. had abused drugs and alcohol, and suffered from a mental illness, which does not qualify as a developmental disability. N.J.A.C. 10:46-1.3. The Commissioner's findings were supported by Dr. Daalder's testimony that E.B.'s drop in IQ score was attributable to his mental illness and substance abuse.

The Commissioner gave detailed reasons for affording more weight to the 1995 IQ score than the other scores in evidence. Given our standard of review, the Commissioner is entitled to our deference with regard to that determination. It is not for us to substitute our judgment for the Commissioner's, so long as the Commissioner based the decision upon credible evidence in the record. Thus, because there is a "fair argument in support of the course" taken by the Division, we are "obliged to affirm." Rosen by Rosen, supra, 256 N.J. Super. at 642.

E.B. also argues that the Commissioner erred by finding that he did not have substantial functional limitations in three of the six major life functions identified by N.J.S.A. 30:6D-25b. We need not address that argument, however, in light of our conclusion that the Commissioner's decision that E.B. did not demonstrate a developmental disability before age 22 was supported by substantial evidence in the record.

We will, however, briefly discuss E.B.'s argument that the Commissioner wrongly rejected the testimony of E.B.'s parents. We disagree.

In T.H., supra, 189 N.J. at 495, the New Jersey Supreme Court emphasized that testimony of the family of the institutionalized individual is relevant and probative. Here, the Commissioner did consider the testimony of E.B.'s family, but did not afford that testimony substantial weight, concluding that E.B.'s parents provided limited evidence as to E.B.'s disability before he was 22 years old. Instead, the Commissioner chose to place more weight on the report of the school psychologist when E.B. was 15, as well as on other evidence of E.B.'s abilities before he turned 22, i.e., that he passed a driver's test; he drove; he completed school through the ninth grade; and the record gave no indication that he would not have graduated from high school had he not dropped out in the tenth grade. We agree with the Commissioner that the facts here differ substantially from those in T.H.. We do not consider the Commissioner's findings to have been manifestly mistaken.



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