This case was last updated from Los Angeles County Superior Courts on 06/02/2019 at 00:55:01 (UTC).

JASON SHERMAN VS STATE OF CALIFORNIA OFFICE OF ADMINISTRATIV

Case Summary

On 08/12/2016 JASON SHERMAN filed an Other - Writ Of Mandamus lawsuit against STATE OF CALIFORNIA OFFICE OF ADMINISTRATIV. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4086

  • Filing Date:

    08/12/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

SHERMAN JASON

Respondent

FRANK D. LATERNMAN REGIONAL CENTER

Attorney/Law Firm Details

Plaintiff Attorney

SMITH PATRICK S. ESQ.

Respondent Attorney

ENRIGHT JUDITH ADDISON ESQ.

 

Court Documents

Minute Order

1/24/2018: Minute Order

ORDER ON COURT FEE WAIVER

1/29/2018: ORDER ON COURT FEE WAIVER

Minute Order

4/20/2018: Minute Order

DECLARATION OF JULIE OCHELTREE IN SUPPORT OF REAL PARTY IN INTEREST'S OPPOSITION TO PETITIONER'S EX PARTE APPLICATION RE CONTINUANCE

8/6/2018: DECLARATION OF JULIE OCHELTREE IN SUPPORT OF REAL PARTY IN INTEREST'S OPPOSITION TO PETITIONER'S EX PARTE APPLICATION RE CONTINUANCE

Minute Order

8/6/2018: Minute Order

Opposition

1/9/2019: Opposition

Notice

1/18/2019: Notice

Notice of Lodging

2/4/2019: Notice of Lodging

Brief

2/7/2019: Brief

Unknown

2/14/2019: Unknown

Minute Order

2/14/2019: Minute Order

PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

8/12/2016: PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

Unknown

11/7/2016: Unknown

Minute Order

11/9/2016: Minute Order

NOTICE OF CONTINUED TRIAL SETTING CONFERENCE

11/14/2016: NOTICE OF CONTINUED TRIAL SETTING CONFERENCE

NOTICE RE: CONTINUANCE OF HEARING

12/19/2016: NOTICE RE: CONTINUANCE OF HEARING

Minute Order

4/21/2017: Minute Order

FIRST AMENDED PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

5/31/2017: FIRST AMENDED PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

29 More Documents Available

 

Docket Entries

  • 02/20/2019
  • at 09:32 AM in Department 86; Hearing on Petition for Writ of Mandate - Not Held - Advanced and Continued - by Court

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  • 02/14/2019
  • at 11:02 AM in Department 86; Non-Appearance Case Review

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  • 02/14/2019
  • Certificate of Mailing for (Minute Order (Non-Appearance Case Review: Notice of Ex Parte Communication) of 02/14/2019); Filed by Clerk

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  • 02/14/2019
  • Minute Order ( (Non-Appearance Case Review: Notice of Ex Parte Communication)); Filed by Clerk

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  • 02/13/2019
  • at 09:33 AM in Department 86; Hearing on Motion to Strike (Opening brief) - Held - Motion Granted

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  • 02/13/2019
  • at 09:31 AM in Department 86; Hearing on Motion to Strike (Opening brief) - Not Held - Clerical Error

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  • 02/13/2019
  • Minute Order ( (Hearing on Motion to Strike Opening brief)); Filed by Clerk

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  • 02/07/2019
  • Brief (AMENDED BRIEF IN SUPPORT OF PETITION FOR WRIT OF ADMINISTRATIVE MANDAMUS (WithinThe Page Limitation)); Filed by JASON SHERMAN (Plaintiff)

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  • 02/07/2019
  • Supplemental Declaration (Of Patrick S. Smith and Request that Court Consider); Filed by JASON SHERMAN (Plaintiff)

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  • 02/06/2019
  • at 2:55 PM in Department 86; Court Order

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65 More Docket Entries
  • 11/09/2016
  • Minute Order

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  • 11/09/2016
  • Minute order entered: 2016-11-09 00:00:00; Filed by Clerk

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  • 11/07/2016
  • NOTICE OF ACKNOWLEDGEMENT OF RECEIPT - CIVIL

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  • 11/07/2016
  • Notice; Filed by Petitioner

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  • 08/16/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 08/16/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 08/16/2016
  • NOTICE OF TRIAL SETTING CONFERENCE & ATTACHED ORDERS THEREON

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  • 08/12/2016
  • SUMMONS ON PETITION

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  • 08/12/2016
  • Petition; Filed by null

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  • 08/12/2016
  • PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

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Tentative Rulings

Case Number: BS164086    Hearing Date: December 09, 2020    Dept: 86

SHERMAN v. STATE OF CALIFORNIA

Case Number: BS164086

Hearing Date: December 9, 2020

[Tentative] ORDER DENYING PETITION FOR WRIT OF MANDATE


On February 2, 2015, Real Party in Interest, Frank D. Lanterman Regional Center (FDLRC) notified Petitioner, Jason Sherman, he did not “have a ‘developmental disability’ as that term is defined by law.” (AR 409.) Accordingly, FDLRC advised Petitioner he was “ineligible for regional center services.” (AR 409.)

Petitioner challenged FDLRC’s determination through a Fair Hearing with Respondent, Office of Administrative Hearings (OAH).

An Administrative Law Judge (ALJ) with the OAH conducted a five-day evidentiary hearing. The ALJ upheld the decision by FDLRC.

Petitioner brought this writ petition to overturn the ALJ’s decision.[1]

The Petition is DENIED.

SUBSTANTIVE ISSUES PRESENTED TO THE OAH

Was the original determination in October 1995 that Petitioner was “provisionally eligible” for regional center services by the North Los Angeles County Regional Center (NLACRC) “clearly erroneous”? (Welf. & Inst. Code § 4643.5, subd. (b).)

Does Petitioner fall within the definition of Autism Spectrum Disorder (ASD) as defined by the Diagnostic and Statistical Manual (DSM) 5?

If Petitioner falls within the ASD diagnosis, is he substantially disabled?

STATEMENT OF THE CASE

The Lanterman Act and FDLRC:

The Lanterman Act “grants persons with developmental disabilities the right to receive treatment and services to meet their needs, regardless of age or degree of handicap, at each stage of life.” (In re Michael K. (2010) 185 Cal.App.4th 1112, 1117.) “The Legislature enacted the Lanterman Act to ‘establish certain rights of the so-called developmentally disabled persons, primarily their entitlement to the maximum degree of personal liberty and autonomy consonant with their handicap.’ ” (Ibid.) “These [rights] include the ‘right to treatment and habilitation services and supports in the least restrictive environment’ and the ‘right to dignity, privacy, and humane care,’ with treatment, services and supports provided in natural community settings to the maximum extent possible.” (Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal.App.4th 676, 682.)

The Department of Developmental Services (DDS) “is the state agency that has jurisdiction over the laws relating to the care, custody, and treatment of developmentally disabled persons.

(§ 4416.)” (Harbor Regional Center v. Office of Administrative Hearings (2012) 210 Cal.App.4th 293, 306.) Under the Lanterman Act, the DDS “contracts with private nonprofit corporations to establish and operate a network of 21 regional centers that are responsible for determining eligibility, assessing needs, and coordinating and delivering direct services to developmentally disabled persons and their families. [Citation.] The regional centers' purpose is to ‘assist persons with developmental disabilities and their families in securing those services and supports which maximize opportunities and choices for living, working, learning, and recreating in the community.’ [Citation.] The state ‘allocates funds to the centers for operations and the purchasing of services, including funding to purchase community-based services and

supports.’ ” (Michelle K. v. Superior Court (2013) 221 Cal.App.4th 409, 422; Harbor Regional Center v. Office of Administrative Hearings, supra, 210 Cal.App.4th at 306–307.)

Each regional center has a separate contract with the DSS to provide services within a particular geographical area of California known as a "service catchment area." (Cal. Code Regs. tit. 17,

§ 54302, subd. (a)(58) (2019).) FDLRC is one of the 21 regional centers, established and operating pursuant to the Lanterman Act.

With the exception of infants and toddlers up to three years of age who have certain disabilities, only those who are determined by a regional center to have a “developmental disability,” as that term is defined by the Lanterman Act, are eligible to receive services from a regional center. (See Gov. Code § 95000-95001; Welf. & Inst. Code § 4512, subds. (a) & (l); Mason v. Office of Administrative Hearings (2001) 89 Cal.App.4th 1119, 1126.) Once an individual is determined by any regional center to have a developmental disability, he or she shall remain eligible for services unless a regional center, following a comprehensive reassessment, finds that the original determination of eligibility is clearly erroneous. (Welf. & Inst. Code § 4643.5, subd. (b).)

A developmental disability, for purposes of qualifying for regional center services under the Lanterman Act, must meet the following conditions: (1) originates before 18 years of age, (2) will likely continue indefinitely, and (3) is a “substantial disability” for the individual, as that term is defined. (Welf. & Inst. Code § 4512, subd. (a).) Under the statute, the individual must have at least one of five qualifying conditions: 1) mental retardation, 2) cerebral palsy,

3) epilepsy, 4) autism, or 5) the commonly referred to “fifth category”—a disabling condition closely related to mental retardation or requiring similar treatment. (Welf. & Inst. Code § 4512, subd. (a).) (Autism is at issue here.)

Petitioner’s Relevant Background and Finding of Provisional Eligibility:

Petitioner is 45 years old. He was born on December 14, 1974. (AR 418.)

Prior to his 18th birthday, in October 1992, the Los Angeles Unified School District and the Los Angeles Department of Mental Health (DMH) referred Petitioner to NLACRC for access to regional center services. (AR 474, 481.) In March 1993, and again in March 1995, NLACRC deemed Petitioner ineligible for regional center services. (AR 501-505, 516, 524.)

In June 1995, Petitioner again applied for regional center services at NLACRC. (AR 524.) In October 1995, NLACRC found Petitioner to be “provisionally eligible” for the services because of a developmental disability. (AR 542.) Specifically, NLACRC concluded at that time: “[Petitioner] is provisionally eligible for Regional Center Services based on a diagnosis of Autism. Reevaluate for continuing eligibility in two years-October 1997.” (AR 542.)

Reassessment and FDLRC’s Review of Petitioner’s Case:

ln 2012, Petitioner moved to FDLRC's service catchment area and asked FDLRC to activate his regional center case. (AR 410.) At that time, FDLRC decided it would conduct a comprehensive reassessment to determine ongoing eligibility, as permitted under the Lanterman Act.[2] (AR 410.) Toward that end, FDLRC retained a psychologist, Dr. Ruzanna Agamyan, and a psychiatrist, Dr. Gordon Plotkin, to evaluate Petitioner. FDLRC also reviewed various records related to Petitioner. (AR 410-411.) The team reassessing Petitioner also considered a report by Dr. Catherine Scarf, a clinical psychologist/neuropsychologist, who evaluated Petitioner for criminal proceedings brought against Petitioner. (AR 796.)

FDLRC completed its reassessment and ultimately determined Petitioner did not qualify for regional center services. FDLRC notified Petitioner of its decision. (AR 409-416.) Petitioner appealed FDLRC’s decision by requesting a Fair Hearing before the OAH. (AR 418.)

On May 20, 2016, after a five-day hearing, the ALJ issued his decision upholding FDLRC’s findings. The ALJ found FDLRC had met its burden of showing NLACRC’s initial finding Petitioner had a developmental disability and was provisionally eligibility for regional center services was factually and legally "clearly erroneous." (AR 1324-1328.)

The ALJ also found Petitioner ineligible for regional center services because he was not "developmentally disabled," i.e., he was not "substantially disabled" as a result of his ASD diagnosis. (AR 1328-1329, 1332- 1337.) Specifically, the ALJ found (1) Petitioner did not "require interdisciplinary planning and coordination" of specialized services, under California Code of Regulations, title 17, Section 54001, subdivision (a)(l), and (2) Petitioner did not have "significant functional limitations" in three areas of function as required by Welfare and Institutions Code section 54001, subdivision (2).

Thereafter, Petitioner filed this writ petition.

STANDARD OF REVIEW

Under Code of Civil Procedure section 1094.5, subdivision (b), the issues for review of an administrative decision are: whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the respondent has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (Code Civ. Proc. § 1094.5, subd. (b).)

While Petitioner sets forth a number of challenges to the ALJ’s decision in his writ petition, Petitioner asserts here the ALJ abused his discretion because the evidence does not support the findings and the findings do not support the decision. (Amended Petition 5-6.) In addition, Petitioner claims the ALJ did not proceed in the manner required by law.

Petitioner does not address whether the standard of review here is substantial evidence or independent judgment. FDLRC contends review here is by the court’s independent judgment. The court agrees.

Under independent judgment, the court must determine whether the weight of the evidence supports the agency’s findings. (Mason v. Office of Administrative Hearings (2001) 89 Cal.App.4th 1119, 1130.) Under this standard of review, the court “ ‘not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence.’ ” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816, fn. 8.) Exercise of independent judgment “does permit (indeed, [] requires) the trial court to reweigh the evidence by examining the credibility of witnesses.” (Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, 658.)

Even under independent judgment, however, the ALJ’s decision does come to the court with a "strong presumption of correctness," and Petitioner bears the burden of demonstrating the ALJ's findings are not supported by the weight of the evidence. (Mason v. Office of Administrative Hearings, supra, 89 Cal.App.4th at 1131; Samantha C. v. State Dept. of Developmental Services (2010) 185 Cal.App.4th 1462, 1492.)

Finally, Petitioner contends the ALJ did not proceed in the manner required by law because he relied on the wrong standard of proof, a preponderance of the evidence instead of “clear and convincing evidence. “[W]hether an agency has proceeded lawfully is a legal question that the trial court and appellate court both review de novo.” (Stewart Enterprises, Inc. v. City of Oakland (2016) 248 Cal.App.4th 410, 420.)

ANALYSIS

The Diagnostic and Statistical Manual of Mental Disorders (DSM) is “a manual published by the American Psychiatric Association [APA] to identify criteria for the classification of mental disorders . . . .” (People v. Johnson (2015) 235 Cal.App.4th 80, 83.) It is There are different editions of the DSM relevant here—the third edition (DSM 3), the fourth edition (DSM 4) and the fifth edition (DSM 5). With each edition of the DSM, diagnostic criteria for any mental disorder may change.

The DSM 3 contained a diagnostic category Pervasive Developmental Disorders (PDD). (AR 1197.) PDD “are characterized by qualitative impairment in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity.” (AR 1197.) PDDs “frequently are associated with a variety of other conditions” including distortions or delays in intellectual skills, comprehension and meaning of speech, movements, patterns of eating or sleeping or drinking. (AR 1197.) The PDD category had “no generally recognized subtypes,” except for Autistic Disorder. (AR 1198.) Under the DSM 3, in situations where the criteria for PDD were established “but not the specific criteria for Autistic Disorder,” the appropriate diagnosis was Pervasive Development Disorder Not Otherwise Specified (PDD NOS). (AR 1198.)

In 1994, the APA published the DSM 4. (AR 1769.) The DSM introduced a disorder “called Asperger’s disorder which is people who met autistic criteria except did not have a problem with language difficulties.” (AR 1769.) PDD under the DSM 4 included both Autistic Disorder and Asperger’s Disorder. (AR 1030.) Under the DSM 4, Austism Disorder had diagnostic criteria distinct from that of Asperger’s Disorder. (AR 1036, 1045.)

The APA published the DSM 5 in May of 2013. (AR 1065, 1067, 1081.) The DSM 5 specified, “Individuals with a well-established DSM [4] diagnosis of autistic disorder, Asperger’s disorder, or pervasive development disorder not otherwise specified should be given the diagnosis of autism spectrum disorder [ASD].” (AR 1082.)

ISSUE 1: Was the original determination in October 1995 that Petitioner was developmentally disabled and “provisionally eligible” for regional center services by the NLACRC “clearly erroneous”?

As noted earlier, Welfare & Institutions Code section 4643.5, subdivision (b) provides, “An individual who is determined by any regional center to have a developmental disability shall remain eligible for services from regional centers unless a regional center, following a comprehensive reassessment, concludes that the original determination that the individual has a developmental disability is clearly erroneous.”

The weight of the evidence supports the ALJ’s finding the NLACRC’s 1995 eligibility assessment and determination Petitioner had a developmental disability based on an autism diagnosis was clearly erroneous.

Petitioner argues FDLRC failed to meet the necessary “clearly erroneous” standard required to terminate Petitioner’s eligibility for regional center services. Petitioner asserts the “clearly erroneous” standard is significantly deferential and requires a showing by FDLRC such that the court is “left with the definite and firm conviction that a mistake has been committed.” (Easley v. Cromartie (2001) 532 U.S. 234, 235.)

Here, in 1995 NLACRC determined Petitioner was developmentally disabled and “provisionally eligible” for services based on a diagnosis of “autism.” (AR 542, 1471.) As noted by the ALJ, however, NLACRC’s eligibility assessment makes no reference to any edition of the DSM or the criteria for diagnosing Autism Disorder. (AR 540-544, 1202.) The record does not suggest the foundation for NLACRC’s diagnosis of Autism Disorder for Petitioner in October 1995.

Moreover, the evidence in the record does not support NLACRC’s 1995 diagnosis of Autism Disorder. Nothing suggests, and Petitioner has not demonstrated from the record evidence otherwise, Petitioner satisfied the criteria for Autism Disorder in 1995 under either the DSM 3 or the DSM 4.[3]

Five years prior to NLACRC’s diagnosis of apparent autism, in 1990, Dr. Mark DeAntonio participated in assessments of Petitioner and determined Petitioner had a primary diagnosis of PDD NOS. (AR 1761, 1768.) PDD was the “most prominent and significant diagnosis.” (AR 1762.) Petitioner’s PDD diagnosis in 1990 was appropriate given “his remarkable lack of social skills, his inability to relate to other people in a meaningful way, in a reciprocal interactive way” as well as “his restricted range of interests . . . .” (AR 1763.) Dr. DeAntonio opined Petitioner did not fit within the criteria under the DSM 3 in 1990 for autism because an autism diagnosis required an individual have “very abnormal language or no language at all.” (AR 1768.)

According to Dr. DeAntonio, even under the DSM 4, published in 1995, Petitioner did not fit the diagnostic criteria of Autism Disorder. Dr. DeAntonio opined Petitioner instead was properly diagnosed under the DSM 4 as having Asperger’s Disorder. (AR 1769.)

Nonetheless referencing his argument NLACRC’s developmental disability determination must be reviewed with significant deference, Petitioner contends his autism diagnosis was not a “clear error.” Petitioner relies on statements by Carol Hernandez, Acting Intake Counselor at NLACRC in 1995 and Licensed Clinical Social Worker (LCSW), made to Dr. DeAntonio in 1995 to support Petitioner’s position his autism diagnosis was not clear error. (AR 540.)

According to Dr. DeAntonio, Hernandez, who was part of Petitioner’s assessment team at NLACRC in 1995, “felt that [Petitioner] really had more than Asperger's disorder and really met criteria for autism because she felt his language issues were more significant. . . . [Hernandez] felt strongly that [Petitioner] met criteria for autism.” (AR 1782-1783.)

This is the only record evidence Petitioner identifies to support his position NLACRC’s eligibility assessment and determination of developmental disability was not clearly erroneous. Based on this evidence, Petitioner suggests reasonable minds can differ on the diagnosis suggesting there is no definite and firm conviction NLACRC made a mistake in 1995. Petitioner recognizes Asperger’s Disorder “was not a qualifying diagnosis.” (Opening Brief 6:16.)

In addition to this evidence, Petitioner attempts to shift the burden to FDLRC arguing that to the extent there is no evidence supporting an autism diagnosis, it must be resolved against FDLRC. Petitioner claims FDLRC failed to call certain percipient witnesses at the Fair Hearing. (Opening Brief: 4 fn. 5.) There is no evidence, however, FDLRC or the ALJ hampered Petitioner’s ability to present evidence during the Fair Hearing.

In the court’s independent review of the record as a whole, the court was unable to locate any diagnosis of “autism” prior to 1995 to support NLACRC’s eligibility assessment and finding of developmental disability. Accordingly, while reasonable minds may differ on diagnoses, the weight of the evidence here supports the ALJ’s decision that NLACRC’s October 1995 determination Petitioner was developmentally disabled and provisionally eligible for regional center services was clearly erroneous. The weight of the evidence suggests a diagnosis of Asperger’s Disorder for Petitioner in 1995—Asperger’s Disorder is a separate diagnosis under DSM 4 and “was not a qualifying condition.” (Opening Brief 6:16.)

Petitioner’s pre-1995 records also do not support NLACRC’s autism diagnosis thereby supporting the ALJ’s decision. There is no suggestion in those records that Petitioner fell within the Autistic Disorder diagnosis as described in the DSM 3.

At age 14, Petitioner had his first psychiatric hospitalization; in connection with this admission, he was referred to Charter Counseling for an assessment by Dr. Stephen Bozylinski. (AR 421, 453.) Dr. Bozylinski noted in his 1989 assessment there was no evidence of “psychosis, autism, or developmental disorder.” (AR 424.) Dr. Bozylinski also described Petitioner as having “an awareness of what is required in social situations.” (AR 424.) Dr. Bozylinski suggested Petitioner “may appear more intelligent than these score [sic] indicate, particularly because of his at least average abilities to ‘read’ social situations for his own advantage . . . .” (AR 424.) Dr. Bozylinski diagnosed Petitioner with Attention-Deficit Hyperactivity Disorder (ADHD) and noted Petitioner exhibited anti-social behavior. (AR 425-426.)

When he was 15 years old, Petitioner was admitted to UCLA's Neuropsychiatric Institute and Hospital (NPI) for approximately two months. (AR 429, 442.) Upon his discharge, professionals at NPI diagnosed Petitioner with Depressive Disorder Not Otherwise Specified, ADHD, and Pervasive Developmental Disorder Not Otherwise Specified.[4] (AR 449-450.)

In 1995, Dr. DeAntonio diagnosed Petitioner with Asperger’s Disorder. (AR 540-541; see also AR 982 [describing Petitioner as “pretty classic for Asperger’s”].)

When NLACRC was evaluating Petitioner’s eligibility for services in 1995, NLACRC sought an evaluation from Dr. Victor Sanchez. Dr. Sanchez wrote in July 1995, according to Petitioner’s parents, “[Petitioner] has always been aware of the feelings of others; has always had a desire to share his interests/excitement with others, did not exhibit any problems like echoing when younger; did not ever clearly exhibit any self-stimulatory behaviors; . . . has always been affectionate with family members; has never exhibits any unusual mood swings; . . . never showed any fascination with textures or water sources; always seemed to enjoy playing with the toys available; and never exhibited any obvious ritualistic behaviors.” (AR 533.) During Petitioner’s evaluation, Dr. Sanchez found Petitioner "expressed himself very well overall. He was quite friendly and cooperative, established and maintained good levels of eye contact and generally showed interest in establishing rapport with the examiner." (AR 534.)

Dr. Sanchez concluded the "syndrome of symptoms described [in his report] suggests that Asperger's Disorder may be the most appropriate - given the limits of retrospective history taking. As required by the [DSM 4], it appears that 3 or more of the symptom cluster can be identified as having been or continuing to be present." (AR 535.)[5]

Finally, in conjunction with FDLRC’s reassessment of Petitioner, Dr. Plotkin evaluated Petitioner. Dr. Plotkin acknowledged Petitioner exhibited “good eye contact” and his “affect was bright and full range.” (AR 975.) According to Dr. Plotkin, Petitioner “clearly read social cues and [his] facial expression.” (AR 975.) Petitioner’s own “facial expressions were quite animated and he spoke in an excited manner.” (AR 975.) Dr. Plotkin considered the diagnostic criteria set forth in the DSM 5 for Asperger’s Disorder. (AR 984-986.) After a thorough review of the criteria and Petitioner’s behavior, Dr. Plotkin concluded Petitioner’s needs would be more appropriately benefitted with services through the DMH rather than with those from regional center. (AR 987.) Dr. Plotkin also explained in his testimony the behaviors attributed to Petitioner when he was younger "were well within the range of normal and not Asperger's or autism spectrum." (AR 1536-1537.)

Moreover, while—according to Dr. DeAntonio—Hernandez believed Petitioner met the criteria for autism, the court finds her diagnosis less credible and entitled to less weight. Hernandez, a LCSW, is not a psychologist or medical doctor. (AR 540.) Petitioner points to no evidence in the record demonstrating any medical professional had diagnosed Petitioner with autism under the DSM 3 or DSM 4 prior to his 1995 eligibility assessment and determination he had a developmental disability.[6]

Based on the foregoing, the court finds the weight of the evidence supports the ALJ’s finding the NLACRC’s 1995 eligibility assessment and determination Petitioner was developmentally disabled based on a finding Petitioner was “autistic” was “clearly erroneous.” For petitioner to have been diagnosed with “Autism,” the diagnostic criteria of Autism Disorder under the DSM 3 or DSM 4 would have to have been met. Pursuant to the DSM 3 and DSM 4, a diagnosis of Asperger’s Disorder is a separate diagnosis from Autism Disorder. Asperger’s Disorder is a PDD. (AR 2146.) Although Asperger’s Disorder could have been diagnosed as a form of autism 20 years ago, the disorder would not necessarily have been within the ASD. (AR 2147-2148.)

As discussed, no records prior to NLACRC’s 1995 eligibility assessment show any evidence of an Autism Disorder diagnosis for Petitioner prior to NLACRC’s “autism” determination in the eligibility assessment. (AR 1414-1415 [Jordan testimony].) Petitioner provides no evidence to the contrary.

Under this court’s independent judgment, the court finds the weight of the evidence supports the ALJ’s finding that Petitioner’s diagnosis of “autism” under the DSM 3 and DSM 4 in support of NLACRC’s 1995 eligibility assessment and determination Petitioner was developmentally disabled was clearly erroneous. Based on the court’s review of the evidence, the court is “left with the definite and firm conviction that a mistake has been committed.”

ISSUE 2: Does Petitioner fall within the definition of ASD as defined by the DSM 5?

The ALJ found Petitioner has been properly diagnosed as within the ASD under the DSM 5. That finding is not challenged here. Accordingly, Petitioner’s ASD diagnosis makes him eligible for regional center services if the disability “constitutes a substantial disability” for him. (Welf. & Inst. Code § 4512, subd. (a).) A substantial disability is:

“the existence of significant functional limitations in three or more of the following areas of major life activity, as determined by a regional center, and as appropriate to the age of the person:

(A) Self-care.

(B) Receptive and expressive language.

(C) Learning.

(D) Mobility.

(E) Self-direction.

(F) Capacity for independent living.

(G) Economic self-sufficiency.”

(Welf. & Inst. Code § 4512, subd. (l).)

ISSUE 3: Is Petitioner substantially disabled?

The ALJ determined Petitioner had significant limitations in only two areas—self-direction and economic self-sufficiency. (AR 1336-1337.) Thus, Petitioner—to prevail on his writ petition—must demonstrate he also suffers from significant function limitations in one of the other categories set forth in subdivision (l) of Welfare and Institutions Code Section 4512—that is, a significant function limitation in self care, receptive and expressive language, learning, mobility and/or capacity for independent living.

Petitioner argues the record supports a finding he has significant limitations in the area of “receptive and expressive language” and “capacity for independent living.” (Opening Brief 13:7-15:6.)

  1. “Receptive and Expressive Language”

In support of his argument with respect to “receptive and expressive language,” Petitioner relies heavily on statements made by Dr. DeAntonio. Dr. DeAnotnio testified:

“Jason can be quite loquacious and so one thinks that he has the -- the social awareness and judgment consistent with someone who is as verbal as he is, but he really often doesn't understand the significance and the practicality of a lot of what he says. And -- and he certainly has a very hard time with reciprocal verbal interactions. He sits and tells you what he wants you to do, but he can't really listen to what you want done, or negotiate at all. So his -- in the field his pragmatics of the language are impaired though his vocability, vocabulary in speaking, is not as impaired as how he practically applied language and understands social intent to verbal interactions.”

(AR 1785-1786.)

Despite this testimony, pursuant to the court’s independent judgment, the court finds the weight of the evidence supports the ALJ’s decision that Petitioner did “not establish his receptive and/or expressive language limitations are significant.” (AR 1335.) The weight of the evidence demonstrates Petitioner is able to speak as well as express his wants and needs clearly. (AR 1335.)

In a report by Dr. Carl Bellamy in 1992, Dr. Bellamy described Petitioner’s language skills as “clear and relevant throughout the session.“ (AR 485.) Petitioner could “share and discuss feelings.” (AR 487.) Dr. Bellamy determined Petitioner’s—an 18-year-old at the time of the assessment—"overall cognitive level is on the borderline range and has fairly good abstract reasoning skills, but his practical judgment is impaired.” (AR 487.) Dr. Bellamy opined Petitioner’s adaptive skills in the area of communication were borderline. (AR 488.)

LCSW Regine Feldman described Petitioner as able to engage with peers but not always in positive manner back when Petitioner was 20 years old. (AR 525.) Further, Petitioner’s mother described Petitioner’s oral expressive language skills as “very good” and for that reason he “appear[ed] to be functioning at a much higher level than he is capable of.” (AR 526.) According to Feldman, Petitioner exhibited a “broad vocabulary and speaks clearly. He understands simple phrases and can follow one step directions. At times he is capable of relating to an experience or tell a story fairly well.” (AR 526.)

In another evaluation by Dr. Sanchez in 1995, Dr. Sanchez noted “[Petitioner] has always been aware of the feelings of others; has always had a desire to share his interests/excitement with others, did not exhibit any problems like echoing when younger.” (AR 533.) During Petitioner’s evaluation, Dr. Sanchez found Petitioner "expressed himself very well overall. He was quite friendly and cooperative, established and maintained good levels of eye contact and generally showed interest in establishing rapport with the examiner." (AR 534.)

Dr. Catherine Scarf—who assessed petitioner at the age of 39—noted Petitioner’s “thought process was linear and goal-directed . . . .” (AR 799.)

Dr. Plotkin concluded: “[T]he severity of social communication and impairments . . . are clearly not met in [Petitioner].”

Finally, the court, in considering Dr. DeAntonio’s testimony in the context of the evidence from other professionals in this matter, questions whether Dr. Antonio has some bias in favor of Petitioner. As noted in Dr. Plotkin’s evaluation, Dr. DeAntonio’s has “clearly been a patient advocate for [Petitioner]” which may have affected his objectivity. (AR 983.) Even NLACRC’s eligibility assessment in 1995 did not note any communication limitations for Petitioner. (AR 543.) Thus, the court finds Dr. DeAntonio’s testimony must be discounted to some extent because of his bias in favor of Petitioner.

Here, given the minimal record evidence supporting a finding Petitioner experiences significant functional limitations with respect to “receptive and expressive language” and the persuasive evidence suggesting Petitioner is a capable of “receptive and expressive language,” the court finds the weight of the evidence supports the ALJ’s conclusion Petitioner does not have significant functional limitations in the area of “receptive and expressive language.”

  1. “Capacity for Independent Living”

Petitioner also argues he needs supportive living assistance to continue to function. (Opening Brief 14:15-18.) Petitioner asserts when he was without such services he was arrested and jailed. Petitioner also argues he cannot pay his own bills or work. (AR 1907.)

Petitioner’s argument suggesting the absence of supportive living services led to Petitioner’s arrest is mere speculation. There is no support in the record for a causal connection between the lack of services and Petitioner’s arrest and conviction. Petitioner has failed to meet his burden on this issue.

In any event, the record does not indicate Petitioner is incapable of independent living.

In fact, in 1995, Dr. Sanchez reported: Petitioner can make telephone calls, make minor purchases, ride public transportation without assistance, perform routine chores on occasion, follow current events and engage in adolescent group activities.” (AR 535.) Dr. Sanchez concluded Petitioner’s adaptive skills show appropriate ability for his age (approximately 20 years old).[7] (AR 535.)

Dr. Bellamy noted Petitioner reported his “self-help skills are complete.” (AR 486.) Petitioner told Dr. Bellamy he could “tell time and use the telephone.” (AR 486.) Petitioner also reported he was able to “get around the community on his own pretty well.” Petitioner told Dr. Bellamy he could do routine household chores and prepare something to eat. (AR 487.) Dr. Bellamy believed Petitioner’s adaptive skills in the area of daily living were borderline. (AR 488.)

The court finds the weight of the evidence supports the ALJ’s conclusion Petitioner does not have significant functional limitations in the area of “capacity for independent living.” (AR 1336.)

Did the ALJ proceed according to law?

Petitioner contends the ALJ abused his discretion because he did not proceed in the manner required by law. More specifically, Petitioner argues the ALJ (1) used an incorrect standard of proof; (2) incorrectly shifted the burden to Petitioner to show the NLACRC’s eligibility assessment and finding of developmental disability was not clearly erroneous; and (3) failed to apply Penal Code section 1001.20.

  1. Standard of Proof:

The ALJ used a preponderance of the evidence standard for FDLRC during the Fair Hearing on the issue of whether NLACRC’s developmental disability determination was “clearly erroneous.” (AR 1323.) Petitioner argues the ALJ erred by not using a “clear and convincing” standard of proof.

“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.” (Evid. Code § 115.)

Petitioner has failed to identify any “law” supporting his claim the appropriate standard of proof in the administrative proceeding was anything other than a preponderance of the evidence. Petitioner apparently abandoned his argument by failing to address FDLRC’s argument in his reply.

Because no “law” requires that a standard of proof other than preponderance of the evidence be applied in administrative proceedings to uphold the denial of regional center services, the court finds Evidence Code section 115 governs the standard of proof in the proceedings before the ALJ. (See e.g., San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889, 1894–1895.) Accordingly, the ALJ did not abuse his discretion by failing to proceed as required by law. He did not err in using a preponderance of the evidence as the standard of proof.

  1. Burden Shifting

The record also does not demonstrate the ALJ improperly shifted the initial burden to Petitioner on the “clearly erroneous” issue.

Petitioner suggests the ALJ incorrectly placed the burden of proof on Petitioner, by focusing on a portion of the ALJ’s decision wherein the ALJ stated:

“First, [Petitioner] argues there was insufficient evidence of the NLACRC eligibility team's determination in 1995 reviewed by the service agency or presented in this case. However, the documents one would expect to exist were reviewed and presented, namely, an intake report, psychological evaluation report, notes from the eligibility team's meeting, eligibility report, and case transfer summaries. If there is any type of document that should exist but was not presented, claimant did not identify it. An example would be one of claimant's many IPPs. It would be expected such a determination or change in thinking would be depicted in such a document if it had occurred.”

(AR 1326.)

Petitioner further cites the ALJ’s decision as follows:

“[i]t is hard to believe that in the six volumes of claimant’s case file, there would not be at least one document showing some competent professional of NLACRC or [Westside Regional Center] determined claimant actually had Autistic Disorder, if that in fact had actually occurred. Claimant and his authorized representatives always had access to his case file. (§ 4725 et seq.) Claimant presented no such evidence.”

(AR 1325.)

The court disagrees the record indicates the ALJ impermissibly placed the burden of proof on Petitioner. The ALJ understood the parties’ burdens. He expressly stated:

“the service agency has the burden of establishing claimant is no longer eligible for services because the NLACRC’s original determination in 1995 that he had a qualifying developmental disorder was clearly erroneous. Should the service agency prevail on that issue, the burden of proof shifts to claimant in establishing he is currently eligible for regional center services because he has a qualifying condition that is substantially disabling. In that regard, claimant’s evidence regarding eligibility must be more persuasive than the service agency’s evidence in opposition.”

(AR 1323.)

Moreover, the ALJ’s statements cited by Petitioner did not indicate the ALJ shifted the burden of proof from FDLRC to Petitioner. Rather, the decision demonstrates that FDLRC met its burden of proof, and Petitioner did not identify sufficient record evidence to support his position in light of FDLRC meeting its burden. (See e.g., Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 682 [“as the trial or hearing progresses in such a situation, the burden of producing evidence, once met, may shift between the parties as further evidence is introduced, while the burden of proof remains with the party on which it is placed by law”].)

The court finds the ALJ did not impermissibly shift the burden of proof from FDLRC to Petitioner on the “clearly erroneous” issue.

  1. Penal Code Section 1001.20

Petitioner argues he is eligible for regional center services because he has a “disabling condition” that is similar to and requiring similar services for autism under the Penal Code section 1001.20.

Pursuant to Penal Code section 1001.20, a “cognitive developmental disability” includes:

“Disabling conditions found to be closely related to intellectual disability or autism, or that require treatment similar to that required for individuals with intellectual disability or autism, and that would qualify an individual for services provided under the Lanterman Developmental Disabilities Services Act.”

(Penal Code § 1001.20, subd. (a)(3).)

Rather than relying on Penal Code section 10001.20, the ALJ considered whether Petitioner’s ASD diagnosis rendered him eligible for regional center services under the “fifth category” of disability as defined by Welfare and Institutions Code section 4512, subdivision (a). (AR 1330-1331.)

The court finds the ALJ’s analysis on this issue to be sound. The court cannot find the Legislature intended to expand an individual’s eligibility to receive regional center services through a Penal Code section intended for diversion of defendants in criminal proceedings. (Pen. Code §§ 1001.21-1001.22.) Rather, the specific provisions of Welfare and Institutions Code section 4512 governs regional center services eligibility.

Notably absent for the fifth category of disabling conditions under Welfare & Institutions Code section 4512, subdivision (a) is any language suggesting “disabling condition” closely related to autism. Rather the statute limits disabling condition to “disabling conditions found to be closely related to intellectual disability or to require treatment similar to that required for individuals with an intellectual disability.” (Welf. & Inst. Code § 4512, subd. (a).)

The ALJ properly determined whether Petitioner qualified for regional center services turned on Welfare and Institutions Code section 4512, not Penal Code section 1001.20.

Do the doctrines of unjust reliance, laches and undue delay apply such that Petitioner cannot be denied regional center services?

Petitioner makes a series of arguments suggesting that doctrines of waiver, equitable estoppel, statute of limitations, and delay warrant granting his petition. (Opening Brief 11:14-12:22.) Petitioner fails to develop any of these specific defense doctrines or identify any legal authority to support the use of these doctrines under the circumstances here.

Furthermore, in opposition, FDLRC persuasively argues these doctrines, as a matter of law do not apply. (Opposition 5:8-22.)

For example, under the doctrine of equitable estoppel, FDLRC argues the doctrine requires some detrimental reliance. Here, Petitioner cannot argue that receiving services he was not entitled to receive were in any way detrimental to him. Said another way, there is no harm to Petitioner in receiving benefits to which he was not entitled.

Nor has Petitioner demonstrated delay by FDLRC. Petitioner requested FDLRC reactivate his regional center services in 2012. On February 2, 2015—after a delay caused by Petitioner’s criminal cases—FDLRC informed Petitioner he was not eligible for services. (AR 409-416.)

CONCLUSION

Based on the foregoing, the petition is DENIED.

IT IS SO ORDERED.

December 9, 2020 ________________________________

Hon. Mitchell Beckloff

Judge of the Superior Court


[1] On January 1, 2020, the OAH made its appearance in this matter and advised the court it would not be participating.

[2] See Welfare & Institutions Code section 4643.5, subdivision (b).

[3] While it is unclear, a 1997 transfer summary prepared by NLACRC may inform on its autism diagnosis for Petitioner. The document states, “Jason is a 22 year old male with a diagnosis of Asper’s [sic] Syndrome which is an autistic disorder.” (AR 546.)

[4] These diagnoses were made subject to the DSM 3 then in effect. In the DSM 3, the diagnostic criteria for PDD NOS instructed the "category should be used when there is a qualitative impairment in the development of reciprocal social interaction and of verbal and nonverbal communication skills, but the criteria are not met for Autistic Disorder, Schizophrenia, or Schizotypal or Schizoid Personality Disorder. Some people with this diagnosis will exhibit a markedly restricted repertoire of activities and interests, but others will not." (AR 1195, 1198 [emphasis added].

[5] The DSM 4, published in 1994, included—for the first time—Asperger's Disorder. (AR 1797.) PDD NOS and Autistic Disorder also continued to exist as a diagnosis in the DSM 4. (AR 1714.) Asperger's Disorder and Autistic Disorder had "very clear different diagnostic criteria that were listed. PDD NOS basically was any person who met more than one or two of the criterions under autism or Asperger's, but didn't meet the full criteria . . . . " (AR 1714.)

[6] Petitioner suggests Dr. Agamyan—who evaluated Petitioner in 2014—determined Petitioner had autism. (Opening Brief 6:9-10.) Petitioner provides no citation in the record to support this point. Dr. Agamyan diagnosed Petitioner with ASD, but did not diagnosis Petitioner with Autism Disorder. (AR 947-958, 1310.)

[7] Dr. Sanchez also noted Petitioner does not go out at night unsupervised, does not care for his own health adequately, does not go distant points alone and is unable to make major purchases successfully. (AR 535.)

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