Catherine Town v. Genesee County, et al

Filing

OPINION filed: AFFIRMED, decision not for publication. Danny J. Boggs, Circuit Judge; Eugene E. Siler , Jr., (authoring), Circuit Judge; and Eric L. Clay, Circuit Judge.

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0486n.06
Case No. 14-1502
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
CATHERINE TOWN,
Plaintiff-Appellant,
v.
GENESEE COUNTY EMPLOYEES’
RETIREMENT SYSTEM,
Defendant-Appellee.

)
)
)
)
)
)
)
)
)
)
)

Jul 06, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

Before: BOGGS, SILER, and CLAY, Circuit Judges.
SILER, Circuit Judge. Plaintiff Catherine Town appeals the district court’s grant of
summary judgment in favor of Genesee County Employees’ Retirement System (the Retirement
System) and dismissal of Town’s claims. For the reasons explained below, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Town was employed by Genesee County (the County) as a Land Foreclosure Specialist
and had worked for the County for approximately eighteen years.

In 2010, she filed an

application for disability retirement benefits with the Retirement Commission of Genesee
County Employees’ Retirement System (the Commission).

The Retirement System is

established under the authority of Mich. Comp. Laws § 46.12a and is a separate and distinct
entity from the County. The Commission is responsible for determining whether an employee,
including Town, is eligible for retirement disability benefits. The relevant Retirement ordinance
provides:

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 2

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
A Member, with 10 or more years of Credited Service, whom the Retirement
Commission finds to be totally and permanently incapacitated for duty from any
cause in the employ of his last Employer may be retired by the Commission upon
application filed with the Commission by the member or his department head:
Provided, that after a medical examination of the Member, made by or under the
direction of the medical director, the medical director certifies to the Retirement
Commission (1) that the Member is mentally or physically totally incapacitated
for duty in the employ of his last Employer, (2) that such incapacity will probably
be permanent, and (3) that the Member should be retired. Upon this Retirement
he shall receive a Retirement Allowance provided in Section 30. In addition to
the above requirements, the Member must apply for Social Security disability
benefits and properly notify the Retirement Commission regarding the results of
said application.
(Emphases added.)
In her initial application for benefits, under the section titled: “Give [a] full explanation
of the nature and causes of your disability,” Town wrote simply: “PPA,” which stands for
Primary Progressive Aphasia. Retirement System Administrator Debra Tocarchick contacted the
medical director, Consulting Physicians, and it scheduled an appointment for Town with Wilbur
J. Boike, M.D., a neurologist. Dr. Boike examined Town and found that “Town’s neurological
examination [was] absolutely normal. She has absolutely no basis whatsoever to suspect or
diagnose any type of neurodegenerative disorder affecting language or cognition.” Moreover,
Dr. Boike determined that “I do not believe that there is any basis to determine that she is
‘disabled’. I believe she could perform her normal work activities were she inclined to do so.”
Shortly after her examination by Dr. Boike, Town emailed Tocarchick and expressed her
displeasure with the way Dr. Boike conducted the examination. At the Commission’s September
2010 meeting, it tabled Town’s application and sent Town to another physician for a second
opinion.

-2-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 3

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
Town was referred to Gary L. Trock, M.D., who is a pediatric and general neurologist.
Dr. Trock ultimately concluded, “I would not consider Ms. Town disabled from a physical or
mental standpoint. In my opinion, Ms. Town does not have a work related disorder, and she can
return to her former job.” Dr. Trock noted that Town performed normally on most of the tests
but scored abnormal on the Folstein mini-mental test, which Dr. Trock “expect[ed] . . . was not a
valid attempt.” Dr. Trock also noted that Town appeared to “voluntarily veer backwards” during
one test, but shortly thereafter, she was able to catch her own bag easily before it tipped over.
After the examination, Town alleged that Dr. Trock might not be qualified to examine her
because he is a pediatric neurologist, but Dr. Trock responded that he is board certified in
neurology with a special competence in child neurology, meaning he is trained in both general
and pediatric neurology.
Town was present at the Commission’s November 2010 meeting. The Commission
acknowledged the receipt of both physician reports and “deni[ed] the non-duty disability
retirement of Catherine Town.”
Later in November, Dr. Trock sent the Commission a follow-up letter concluding that,
after reviewing additional records sent by Town, he remained confident that Town did not have
Primary Progressive Aphasia. Dr. Boike indicated that, after reviewing the additional records,
his opinion was also unaltered, and he did “not believe that Ms. Town has either primary
progressive aphasia or a neurodegenerative disorder.”
At the Commission’s December 2010 meeting, it voted to close Town’s case “unless she
comes forward again with new and relevant medical information.” Town then submitted a handwritten appeal of the Commission’s denial of benefits and requested a hearing. After several

-3-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 4

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
delays made at the request of Town’s attorney, the Commission conducted a hearing on June 20,
2011.
At the hearing, Town’s attorney provided the Commission with new medical opinions
and indicated that Town may actually be suffering from “Hughes Syndrome,” rather than
Aphasia. Town’s attorney was troubled that Drs. Boike and Trock failed to consider other
problems that may have been producing Town’s symptoms. Town provided the Commission
with a number of medical records and other materials in support of her claim for benefits,
including a letter from Hartford Life and Accident Insurance Co., approving her claim for longterm disability benefits.
Drs. Boike and Trock were again asked to reevaluate Town based on new medical
information that Town may be suffering from “generalized anxiety” and “antiphospholipid
antibody syndrome” (Hughes Syndrome). Dr. Boike’s opinion was unchanged. Dr. Trock
reaffirmed his original opinion that Town did not have Aphasia but indicated he deferred to a
psychiatrist or psychologist regarding whether Town suffered from depression or Hughes
Syndrome.
Based on Town’s new records, revised assertions that she did not suffer from Aphasia but
suffered instead from some other psychiatric syndrome, including Hughes Syndrome, and per her
attorney’s requests, Tocarchick contacted Consulting Physicians, who recommended Christian
Schutte, Ph.D., a neuropsychologist. Dr. Schutte determined that Town’s “presentation is not
consistent with a dementia process and is more parsimonious with a psychiatric diagnosis.”
Moreover, while “[i]t may be difficult for her to return to her previous employment at this time”
because Town “apparently found it very emotionally taxing . . . it is likely she should be able to
return to work.” (Emphases added.) Ultimately, Dr. Schutte concluded, “Ms. Town should not

-4-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 5

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
be retired, but that she may have difficulty with performing her previous employment at the
intensity she indicated in her treatment records . . . [but] [h]er duties may be reconsidered after
she has been successfully treated.”
At the Commission’s next meeting, it considered Dr. Schutte’s report and decided to send
the report to the County, Town’s employer, with a request for the County to address whether
another job that was less psychiatrically taxing existed that could better accommodate Town.
The County indicated that, based on Dr. Schutte’s report, it was questionable whether Town was
disabled and, because Town had not requested an accommodation under the Americans with
Disabilities Act, it was under no obligation to consider an accommodation.

However, the

County noted that, even assuming Town was disabled, “no other job exists in her office that
would provide a less ‘psychiatrically taxing’ or less ‘psychologically overwhelming’
atmosphere.”
In December 2011, the Commission notified Town and her attorney that the Commission
had again denied Town’s non-duty disability retirement because all three examiners had
concluded that Town was not disabled; Town had not submitted evidence that she applied for
social security disability; and she had exhausted all methods pursuant to the Genesee County
Retirement ordinance.
Town requested a rehearing and argued that Dr. Schutte used an improper standard for
determining whether she was disabled. She complained that Dr. Schutte should have evaluated
whether she could perform “in the same or similar position [she] held at the time of disability,”
not “some hypothetical job which does not exist.” Town also questioned whether Dr. Schutte
truly evaluated her from a “mental” rather than a physical perspective. Town’s attorney also
submitted a denial letter from the Social Security Administration.

-5-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 6

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
Despite the informal December 2011 denial, the Commission sent Town a letter officially
denying her appeal on February 7, 2012. Town renewed her request for a rehearing.
In March 2012, the Commission granted a rehearing on Town’s claim for benefits. In
April 2012, Town provided the Commission with a record of an award of social security
benefits. Notably, the award of social security benefits was based, at least in part, on a diagnosis
of Hughes Syndrome and Primary Progressive Aphasia. Town also supplied the Commission
with additional medical records, including diagnostic testing showing the possibility of Hughes
Syndrome.
In a May 2012 letter, Dr. Schutte provided the Commission with a supplemental report.
He considered a document from Hartford Life and Accident Insurance Co., statements from two
of Town’s doctors, a document from the Social Security Administration, a vocational
assessment, and additional treatment records. Dr. Schutte concluded:
From a neuropsychological point of view there was no evidence of aphasia,
cognitive deficits and Ms. Town denied symptoms of Major Depression or
Generalized Anxiety. Thus, review of additional records does not change the
opinion of the September 24, 2011 neuropsychological evaluation, as there were
no additional records to support difficulties identified as disabling, including
“severe depression”, Generalized Anxiety or cognitive deficits from
neuropsychological point of view.
Town again objected that Dr. Schutte’s opinion was not based on the correct standard of
disability, and his evaluation was not a correct “mental” evaluation.
The Commission, through Consulting Physicians, next scheduled Town an appointment
with Jamal Hammoud, M.D, a board-certified doctor in internal medicine. After a review of
Town’s records and an examination of Town, Dr. Hammoud concluded that “I do not see any
medical or endocrine disorder [i.e. Hughes Syndrome] that would prevent her from working and

-6-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 7

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
I do not see that she has any speech disorder.” However, Dr. Hammoud concluded that Town
was disabled and should retire because Town:
did have a stressful job and based on [his] evaluation, it seemed that the patient
was very anxious and [he] agree[d] that she has generalized anxiety. That will
prevent her from working in a stressful job . . . If there is any other job not so
stressful, she could handle it, but based on the description of the job that was
given to me in writing from the patient, I do not think she can perform her job and
she should actually retire.
At its September 2012 meeting, the Commission expressed concern that Dr. Hammoud
did not base his disability determination on Hughes Syndrome, which was the main reason he
was asked to evaluate Town. At its October 2012 meeting, the Commission heard arguments
from Town’s attorney, noted its ability to view each examiner’s assessment with the same
weight, and reaffirmed its denial of Town’s application for benefits.
Town filed suit in state court against the County and Retirement System asserting:
(1) “improper denial of disability retirement benefits” (Count I); (2) violation of her due-process
rights under 42 U.S.C. § 1983 and the Michigan Constitution (Count II); and (3) discrimination
under the Americans with Disabilities Act, 42 U.S.C. § 12101, and the Persons with Disabilities
Civil Rights Act, Mich. Comp. Laws § 37.1102 (Count III).
The County removed the suit to federal court. Later, the parties filed a stipulation of
dismissal as to Town’s claims against the County. The district court denied Town’s motion for
summary judgment, granted the Retirement System’s motion for summary judgment, and
dismissed the case.
While Town asserted three separate counts in her complaint, the Retirement System’s
motion for summary judgment, Town’s motion for summary judgment and response, as well as
the district court’s order, only appear to address Count I of Town’s complaint––that the

-7-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 8

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
Retirement System improperly denied Town’s claim for benefits. Town’s appellate brief and the
Retirement System’s response brief similarly refer only to the issue of whether the Retirement
System improperly denied Town’s claim for benefits. To the extent Town attempts to assert
other claims on appeal, she has waived such arguments by not raising them in her brief. See
Indeck Energy Servs., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir. 2000).
STANDARD OF REVIEW
The parties agree that this is a claim to which the district court exercised supplemental
jurisdiction, and, therefore, Michigan law applies. See Haynes v. Marshall, 887 F.2d 700, 705
(6th Cir. 1989); Exxon Mobil Corp. v. Fenelon, 76 F. App’x 581, 587 (6th Cir. 2003) (“A federal
court exercising supplemental jurisdiction over state law claims is bound to apply the law of the
forum state to the same extent as if it were exercising its diversity jurisdiction.” (internal
quotation marks omitted)). The parties also agree that the decision of a Michigan governmental
retirement commission is reviewed as an administrative appeal upon motions for summary
judgment. See Flanagan v. Macomb Cnty. Emps. Ret. Sys., No. 2010-003943-CK, 2012 WL
5290308 at *3 (Mich. Ct. App. Oct. 25, 2012).
According to the Michigan Supreme Court, a trial court:
must affirm [an administrative decision] if it conforms to the law, and if
competent, material, and substantial evidence supports it. A reviewing court is not
at liberty to substitute its own judgment for a decision of the [Commission] that
is supported with substantial evidence.
Hodge v. U.S. Sec. Assoc., Inc., 859 N.W.2d 683, 685 (Mich. 2015) (internal quotation marks
and citations omitted). “Only agency decisions that are contrary to law, . . . arbitrary, capricious,
or a clear abuse of discretion, [and not] supported by competent, material and substantial
evidence on the whole record will be overturned.” McDole v. City of Saginaw, No. 10-010637-

-8-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 9

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
NZ, 2012 WL 1698380 at *2 (Mich. Ct. App. May 15, 2012) (internal quotation marks omitted)
(emphasis added). We review de novo the district court’s determination of whether the state
agency’s judgment was arbitrary or capricious, or was not supported by substantial evidence.
See, e.g., Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 694 (6th Cir. 1989).
ANALYSIS
Based on Section 28 of the relevant Genesee County ordinance the district court
determined that to qualify for retirement benefits, Town needed: (1) to have been a member with
ten or more years of credited service; and (2) the Commission needed to find that Town was
“totally and permanently incapacitated for duty from any cause in the employ of [her] last
Employer.” Moreover, only after a medical examination of Town, made by or under the
direction of the medical director, certified to the Commission that: (1) Town was “mentally or
physically totally incapacitated for duty in the employ of her last Employer”; (2) “that such
incapacity will probably be permanent”; and (3) that she should be retired, could Town receive
benefits. It is undisputed that Town was an employee of the County for more than ten years and
that she was evaluated by medical examiners at the direction of the medical director. However,
it is disputed whether the Commission should have found Town totally and permanently
incapacitated.1
Town’s extensive appellate brief consists of six arguments: (1) Town suffers from a
mental disability; (2) Dr. Schutte applied an improper standard to determine disability; (3) Dr.
Schutte was not made aware that no other jobs were available that were less psychologically
strenuous; (4) Dr. Schutte was not a physician; (5) the Commission should have accepted Dr.

1

It is also undisputed that Town applied for and received social security benefits. Application for social security
benefits is a requirement under the relevant ordinance. However, it appears from the record that Town did not
supply documentation of her social security application until late 2011, over a year after initially applying for
benefits.

-9-

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 10

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
Hammoud’s finding of disability; and (6) the Commission failed to consider all of the available
evidence. The question is whether any of these assertions can overcome the substantial evidence
standard. VanZandt v. State Emps. Ret. Sys., 701 N.W.2d 214, 218 (Mich. Ct. App. 2005). We
conclude that they do not.
First, Town asserts that she suffers from a mental condition and since the Retirement
System does not require that she identify a specific condition, the Commission should have
found her disabled for mental reasons. This argument ignores the factual record of this case and
makes light of the level of deference owed to the Commission’s findings of fact. We may not
substitute our own judgment for that of the Commission. VanZandt, 701 N.W.2d at 218.
Town insists that “[e]very doctor who examined Town recognized that there was a
significant mental component to her condition.” When Town first applied for disability benefits,
she did not maintain she had any mental problems. Instead, she insisted she suffered solely from
Aphasia. Town reported that she struggled with “speech and mental coordination,” not general
mental or anxiety issues. Thus, Dr. Boike would have had no reason to guess that Town suffered
from mental or psychological problems. Town was upset with Dr. Boike’s evaluation not
because she initially thought he failed to examine her for mental conditions, but because she was
displeased with his “sarcastic remarks” and “poor quality.” In October 2010, when Dr. Trock,
the second examiner, determined that Town was not disabled, Town complained that Dr. Trock
was a pediatric neurologist and was therefore not qualified on that basis. At that time, Town still
did not complain that she experienced any mental problems.
In fact, Town did not switch course as to the reason for her disability until she received a
hearing in June 2011, roughly a year after Town initially applied for disability benefits. Thus,
that Drs. Boike and Trock did not evaluate Town for mental or psychological problems does not

- 10 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 11

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
serve to undermine their medical findings of non-disability. Moreover, after her new assertion
that she may be suffering from Hughes Syndrome, the Commission again gave Town the benefit
of the doubt and sent her to a neuropsychologist, Dr. Schutte. Dr. Schutte similarly found Town
was not disabled and noted that Town denied symptoms of Major Depression or Generalized
Anxiety. Again, when Town was unhappy with Dr. Schutte’s determination, the Commission
sent Town to a fourth examiner, who finally determined that Town was disabled.
Town carried the burden to prove her disability. She switched course as to the cause of
her disability over a year after applying for benefits. Three of four examiners determined that
Town was not disabled. While Town was not required to label her condition, she repeatedly
chose to assert disability based on specific disorders, and all four of the medical examiners
declined to diagnosis Town with Aphasia or Hughes Syndrome. Accordingly, Town’s first
reason for reversal is without merit.
Next, Town insists that Dr. Schutte did not apply the “job specific” standard of disability;
that is, Dr. Schutte never based his disability determination on whether Town could continue to
perform her most recent job, not whether she could continue to work more generally. In support
of this position, Town cites the Retirement System attorney’s statement during a closed session
that Town “may reasonably be retired” based on Dr. Schutte’s opinion that Town could not
perform her current duties. She also cites to the fact that the County determined that no
psychiatrically less taxing jobs were currently available. Town ignores the fact that Dr. Schutte
expressly indicated that Town’s condition was not permanent because it was “treatable with
adequate engagement by the patient.”2 That Town’s condition is likely permanent is a specific

2

Dr. Schutte indicated that “Town should be able to return to work in a capacity that she does not find
psychologically overwhelming.” Yet, he also commented on the difficulties with her treatment based on her refusal
to consider her psychiatric problems. Ultimately, this does not change the conclusion that if Town were cooperative
and treated, her condition would not be permanent, and therefore, she cannot be considered disabled.

- 11 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 12

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
requirement of a finding of disability. Thus, even assuming Dr. Schutte should have been
provided with a job-specific description, his finding of non-disability would stand regardless of
whether he considered a general or specific job.
Town’s next argument is related. She maintains that the Commission should have made
Dr. Schutte aware that Town could not transfer to a psychologically less taxing job because none
was available. This argument fails for the same reason as Town’s second argument fails. Dr.
Schutte’s determination of non-disability was also based on the fact that Town’s problems were
not permanent, as is required under the ordinance. Moreover, Town belittles the fact that she
spent over a year insisting that she suffered from Aphasia and that two physicians had already
concluded she was not disabled. The Commission was able to consider not just Dr. Schutte’s
evaluation, but also the other examiners’ opinions. Moreover, when Dr. Schutte reconsidered his
analysis based on the additional documentation submitted by Town, he expressly noted that
“[r]eview of additional records indicates a variety of diagnoses that Ms. Town was apparently on
disability for, including psychiatric issues and cognitive issues, which were not objectively
shown on the neuropsychological examination completed on September 24, 2011.”

Town

specifically denied symptoms of Major Depression or Generalized Anxiety.
Town next maintains that the Commission erred by considering Dr. Schutte’s opinion
because he is not a “physician” but instead is a Ph.D. She cites the County ordinance § 12(f),
which indicates that the Commission “shall appoint as medical director a physician.” The
relevant County ordinance indicates that the Commission may only find disability after “a
medical examination of the Member, made by or under the direction of the medical director.”
(Emphasis added.) Town claims that the Commission’s reliance on Dr. Schutte’s opinion is
contrary to the County ordinance.

- 12 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 13

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
In support of her position, Town also cites the County Retirement System Disability
Retirement Policy Procedures, which states:
the Commission shall adopt its Acceptance Resolution (Form D1S.6) which
acknowledges receipt of the application and designates its Medical Director, or
some other physician recommended by its Medical Director, to serve as the
Medical Director . . . . The Member is examined by the Medical Director or a
physician designated by and under the direction of the Medical Director.
This policy is not a county ordinance, and, thus, it is not law. Town further relies upon In re
Storm, 514 N.W.2d 538, 541 (Mich. Ct. App. 1994), for the proposition that “[w]here the
language of a statute is clear, there is no need for interpretation; the statute must be applied as
written.” However, the Michigan Supreme Court overruled In re Storm to the extent it conflicted
with its new holding that an association may “show[] that the parties had a meeting of the minds
with respect to . . . new terms or conditions and that the past practice was so prevalent and
widely accepted that there was an agreement to modify the contract.” Detroit Police Officers
Ass’n v. City of Detroit, 551 N.W.2d 349, 350, n.2 (Mich. 1996).
Town’s argument arises out of her misunderstanding of the term “medical director” as it
was used throughout the course of her case. The record in this case indicates that the medical
director was Consulting Physicians, who recommended Dr. Schutte to conduct a medical
examination in accordance with the ordinance. In fact, in a letter to Dr. Schutte, Tocarchick
clearly noted: “The Genesee County Retirement Commission requested that its Medical
Director, Consulting Physicians, recommend an appropriate professional to evaluate Ms. Town
to make this determination.” (Emphasis added.) An email sent to Town indicates, “Consulting
Physician[s] responded with a recommendation for a Neuropsychologist who would examine and
test for cognitive function impairments.”

Of course, Consulting Physicians is not itself a

“physician,” and Town mentions this in her brief.
- 13 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 14

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
However, Consulting Physicians was so widely accepted as the medical director in this
case, there was a meeting of the minds as to its role between the Retirement System and Town.
See Detroit Police Officers Ass’n, 551 N.W.2d at 350. The Commission relied on Consulting
Physicians as a “medical director” throughout the course of this case with no objection by Town
or her attorney. According to a letter from Tocarchick to the Practice Manager of Consulting
Physicians,
The Genesee County Employees’ Retirement System uses Consulting
Physician[s] Group as its Medical Director to review and evaluate medical
evidence and make recommendations regarding applications for disability
retirement. Catherine Town was evaluated by two separate neurologists
recommended by Consulting Physicians in connection with her disability, Dr.
Wilber J. Boike . . . and Dr. Gary Trock.
(Emphasis added.) The Retirement System also used Consulting Physicians as the medical
director in association with Dr. Hammoud, whose opinion Town obviously champions.
Consulting Physicians even mailed Town a confirmation that she would not be charged for her
visit with Dr. Hammoud. It is true that the Retirement System was sloppy with its terminology,
as it also referred to Drs. Boike, Trock, and Schutte as the Commission’s “medical director,” but
there is an abundance of documentation from the record indicating that it was the Commission’s
practice to ask its legally ordained medical director, Consulting Physicians, to refer a medical
examiner to review Town’s claim for disability. The County Ordinance at issue provides: “after
a medical examination of the Member, made by or under the direction of the medical
director. . . .” (Emphasis added.) The Retirement System’s repeated practice––of seeking a
referral from Consulting Physicians and using the referral’s opinion as reported from Consulting
Physicians––was never questioned by Town until she filed a complaint against the Retirement
System. Furthermore, Town has not cited any proof that this practice has ever been challenged

- 14 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 15

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
in the past by other members. Thus, Town cannot retrospectively complain that there was no
past practice or no meeting of the minds concerning the method the Commission used to select
all four of the doctors who examined Town.
Moreover, the standard of review in this case is a deferential one. Even if we were
inclined to find that the Commission erred by considering the opinion of Dr. Schutte, a Ph.D.
rather than an M.D., the evidence before the Commission would be enough to support the
Commission’s decision of non-disability. Thus, any error would be harmless.
Next, Town argues that the Commission “violated its own practices by disqualifying the
certification of Town’s disability from its own Medical Director on the basis that Jamal
Hammoud, M.D. lacked the experience, training, and background to issue his certification,
without obtaining any information regarding Jamal Hammoud’s experience, training, or
background.” This statement has no footing in the record of this case. After Town had already
been reviewed by three medical examiners and, after the Commission had already repeatedly
denied Town benefits, the Commission determined that Town should be reexamined “in light of
Ms. Town’s recent diagnosis of Hughes Syndrome.” It was very clear that Town was scheduled
for reexamination to determine whether she was disabled based on Hughes Syndrome. A letter
from Town’s attorney states: “Catherine Town has no objections to having Jamal Hammoud,
MD evaluate her Hughes Syndrome condition.” (Emphasis added.) Dr. Hammoud examined
Town and determined that “Based on my evaluation and review of records, I do not see any
medical or endocrine disorder that would prevent her from working.”

(Emphasis added.)

Curiously, Dr. Hammoud briefly concluded that, due to Town’s generalized anxiety and selfdescribed stressful job, Town was disabled.

- 15 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 16

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
The Commission’s primary concern with Dr. Hammoud’s report was not his
qualifications––although Dr. Hammoud is board certified in internal medicine, not psychiatry––
but his finding of disability based on generalized anxiety when Town was specifically referred to
Dr. Hammoud based on her claim of Hughes Syndrome. The Commission repeatedly sought to
have Town examined based on her alleged conditions, and the Commission went “to great
lengths” so that Town could be examined by the appropriate physician. Ultimately, we cannot
substitute our own judgment for that of the Commission, particularly considering that the
Commission’s decision was thorough and based on substantial evidence.

See VanZandt,

701 N.W.2d at 218. The relevant County ordinance states that Town “may be retired by the
Commission upon application filed with the Commission by the member or his department
head,” so long as the conditions are met, and thus, whether to retire a member is up to the
discretion of the Commission, so long as its decision is not contrary to the law or the substantial
evidence. See id.
Finally, Town claims that the Commission failed to consider all available evidence. In
support of her argument, Town lists all of the evidence from her own doctors, Social Security
Administration, and Hartford Life and Accident Insurance Company. As already emphasized,
the Commission’s decision need only be supported by substantial evidence. Its opinion is not
arbitrary and capricious merely because it chose to believe one report over another. Moreover,
much of the evidence cited by Town is contradicted by other evidence in the record. The
Hartford letter approving Town for long term disability benefits, for example, “encourage[s]
[Town] to return to work as soon as possible.” This does not indicate that Hartford considered
Town permanently disabled. The social security disability finding was based, at least in part, on

- 16 -

Case: 14-1502

Document: 27-1

Filed: 07/06/2015

Page: 17

Case No. 14-1502
Catherine Town v. Genesee County Employees’ Retirement System
a diagnosis of Hughes Syndrome and Primary Progressive Aphasia. The four examiners in this
case all rejected such a diagnosis.
AFFIRMED.

- 17 -