This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 6 ). STATE OF MINNESOTA IN COURT OF APPEALS A16
- 0590 In re the Matter of: Verdell Fredrick Borth, petitioner, Appellant,

vs. Commissioner, Minnesota Department of Human Services, et al., Respondents, Carver County, et al., Respondents. Filed February 13, 2017 Affirmed Bratvold , Judge Carver County District Court File No. 10

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Verdell F redrick Borth, Chanhassen, Minnesota ( attorney pro se) Lori Swanson, Attorney General, Dominic J. Haik, Jeffrey Bilcik, Assistant Attorney General, St. Paul, Minnesota; and Mark Metz, Carver County Attorney, Dawn M. O’Rourke, Assistant County Attorney, Chaska, Minnesota (for respondents)
Considered and decided by Stauber , Presiding Judge; Worke , Judge; and Bratvold , Judge

.2 U N P U B L I S H E D O P I N I O N BRATVOLD , Judge Appellant challenges the di strict court’s order affirming the decision of respondent Commissioner of Human S ervices (commissioner) to deny m edical assistance benefits. Because the commissioner’s dec ision did not prejudice appellant’s substantial rights and because the decision was not made based upon a violation o f constitutional provisions, in excess of statutory authority or agency jurisdiction, made upon unlawful procedure, affected by other error s of law, unsupported by substantial evidence in view of the entire record as submitted, or arbitrary and capricious, we affirm. FACTS Appellant Verdell Frederick Borth , now age 72, applied for, and received, social security disability insurance (SSDI) ben efits in 2004. At that time, Borth did not apply for supplemental security income ( SSI ) benefits, which resulted “in an open application for
SSI.” B ecause Borth did not apply for SSI within 60 days of receiving notice that his SSI inquiry would close , the Social Security Administration ( SSA ) notified him that his SSI inquiry was closed in 2006. From 2009 until sometime in 2012, Borth received medical assistance benefits from Carver County Human Services (the agency ); the agency terminated Borth’s medical

as sistance benefits in 2012 “for unspecified reasons.” On January 31, 2013, Borth filed a new application for medical assistance benefits. The agency determined that Borth’s monthly income at the time was $1,477. Because
Borth’s income for a household size of one exceeded the $931

- income

- eligibility limit, the3 agency concluded that Borth would have to attain eligibility through a “ spenddown. ” A spenddown is a cost

- sharing requirement that provides medical assistance eligibility for individuals that spend down excess income by paying certain medical expenses. The agency determined that Borth’s payment of medical expenses did not bring him within the applicable income standard. On April 17, 2013, the agency notified Borth that his “MA benefits ha[ d] been denied as of October 1, 2012 because his income” exceeded the eligibility limits and he did not attain eligibility through a spenddown. Borth challenged the agency’s decision. The human services judge (HSJ) conducted an evidentiary hearing o n Septe mber 13, 2013 , and held open the record “to receive additional evidence” under Minn

. Stat

. § 256.0451, subd. 19 (2012). The HSJ received and accepted additional evidence from Borth and closed the record on December 14, 2014. The HSJ recognized Borth’s elig ibility for medical assistance based on his age and disability, but recommended that the commissioner affirm the denial of Borth ’s medical assistance benefits because he did not qualify under the applicable income standards

. On Februa ry 4, 2015, the commis sioner affirm ed the denial

. Borth then appealed to the district
court. T he parties agreed that the district court’s review was “ contingent upon receipt of the record and transcript from proceedings relating to Court File 10

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- 669. ” After receiving the record , the district court affirmed the denial of Borth’s benefits on February 8,
2016 . This appeal follows.4 D E C I S I O N State agency hearings are available for “any person ” whose applic ation for medical care assistance is denied. Minn. Stat . § 256.045, subd. 3(a)(1) (2016 ). Any person “aggrieved by an order of the commissioner of human services . . . may appeal the order to the district court of the county responsible for furnishing assistance.” Minn . Stat. § 256.045, su bd. 7 (2016 ). “Any party aggrieved by the order of the district court may appeal the order as in other civil cases.” Minn . Stat. § 256.045, subd. 9 (2016 ). Borth argues that, when reviewing an agency decision, this court applies a de novo standard of review. We agree that this court “review[s] the commissioner’s decision independently, giving no deference to the district court’s decision.” In re Appeal of Sta ley , 730 N.W.2d 289, 293 (Minn. App. 2007). But in conducting its review, this court employs the “standards prescribed in the Minnesota Administrative Procedure Act.” Id

. Und er MAPA, this court may affirm or remand; or it may reverse or modify an agency d ecision if the “ substantial rights ” of a petitioner “may have been prejudiced” because the administrative decision was: in violation of constitutional provisions, in excess of statutory authority or agency jurisdiction, made upon unlawful procedure, affec ted by other error of law, unsupported by “substantial evidence in view of the entire record as submitted,” or arbitrary or capricious. Minn. Stat. § 14.69 (2016 ). “Agency decisions enjoy a presumption of correctness.” Staley , 730 N.W.2d at 293 (quotation omitted). “ The party challenging the agency decision has the burden of proving grounds for reversal. ” Shagalow v. State, Dep’t of Human Servs ., 725 N.W.2d 380, 384 (Minn. App. 2006) , review denied (Minn. Feb. 28, 2007).5 Borth argues that the district court erred in affirming the agency determination because (1) he qualifies for medical assistance under the “Pickle d isregard,” (2) the agency should be estopped from denying him medical assistance benefits because it failed to assist Borth in completing an SSI application in 2004, and (3) the agency used the wrong household size in determining his eligibility for medical assistance benefits. Each argument will be discussed in turn. Preliminarily, we note that Borth do es not argue a violation of constitutional provisions.
I. The Pickle Disregard The Pickle d isregard 1 requires that the agency disregard cost

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- living increases to an applicant’s SSDI benefits in determining income for other benefit programs. 42 C.F.R. § 435 .135(a) (2015 ). To quali fy for the Pickle disregard, Borth must establish three elements: (1) he receives or is entitled to SSDI; (2) he is eligible for and receiving SSI or Minnesota Supplemental Aid (MSA) in any one month concurrently since April 1977; and , (3) he lost eligibility for SSI, or MSA for any reason when SSDI commenced . 42 C.F.R. § 435.135(a)(1)

– (3) (emphasis added) ; see also Minn. St at. § 256B.056 , subd. 4(f) (2016); Minn. Dep’t of Human Servs., Health Care Program s Manual § 21.50.15 (2009). If th e Pickle d isregard applies to Borth, then he is treated as though he receives SSI and is not subject to a spenddown. Minn. Dept. of Human Servs., Health Care Program s Manual § 20.50.15 (2009).

1 The Pick le d isregard is named after its congressional sponsor, former Texas representative J.J. Pickle

. N. Broward Hosp. Dist. v. Shalala , 997 F. Supp. 41, 43 n.2 (D.D.C. 1998), rev’d , 172 F.3d 90 (D.C. Cir. 1999).6 Borth argues that the agency incorrec tly determined his income based on the Pickle d isregard because he receives SSDI, and, when he applied for SSDI in 2004, an application for SSI was opened and remained pending

. In short, Borth appears to claim that the agency’s decision is unsupported by s ubstantial evidence or is affected by an error of law

. The HSJ recognized that Borth met the first element of the Pickle d isregard because he receives SSDI, but t he HSJ also determined that Borth failed to satisfy the second element. Borth did not show th at he was eligible for or received SSI or MSA or otherwise qualified under the program. The HSJ recommended affirmance and the commissioner adopted the HSJ’s decision. Based on our r eview of the record, the commissioner’s decision is not unsupported by substantial evidence in view of the entire record as submitted and we discern no error of law . T he record does not reflect that Borth is eligible for the Pickle d isregard. Alt hough Borth receiv es SSDI, he offered no evidence that he wa s eligible for or re ceived SSI or MSA. Rather, the record shows that Borth never filed an SSI application , contrary to his assertion. In fact, any protected filing period for Borth ended in 2006 because he did not file an SSI application wit hin 60 days of receiving notice tha t his inquiry would close

. We also note that the record shows that Borth received General Assistance (GA) in May 2004, not MSA as he claims

. Borth asserts that he was SSI

- eligible in previous years, but provided no evi dence to support that assertion. T hus , Borth failed to meet the second

e lement of the Pickle d isregard and, consequently, cannot meet the related third element. Because the commissioner’s de cision was not unsupported by the record evidence and not affected by an error of law , the district cour t did not err in affirming the7 commissioner’s decision that Borth did not qualify for medical assistance under the Pickle d isregard.
II. Estoppel Estoppel is not freely applied to the government. Mesaba Aviation Div. of Halvorson of Duluth, Inc., v. County of Itasca , 258 N.W.2d 877, 88 0 (Minn. 1977). An appellant “seeking to estop a government agency has a heavy burden of proof.” Brown v. Minn. Dep’t of Pub. Welfare , 368 N.W.2d 906, 910 (Minn. 1985). An appellant must prove that (1) the agency “ma de representations or inducements,” (2) the appellant reasonably relied on those representations, (3) there is some element “of fault or wrongful conduct” on the part of the agency, and (4) the appellant will suffer harm if estoppel is not applied. Id

. Whe n determining whether estoppel will lie against the government, this “court will weigh the public interest frustrated by the estoppel against the equities of the case.” Id

. Although Borth does not characterize the estoppel issue under the applicable MAPA

s tandard of review, it appears that he conte nds the commissioner’s decision was unsupported by substantial evidence , affected by an error of law, or arbitrary and capricious

. Borth argues that the agency represented that the information he submitted in 2004 to show his eligibility for SSDI also would be sent to the SSA for an SSI application . Borth also claims that he reasonably relied on the agency’s representation and the agency did not inform him that he should file an application with the SSA office. Bec ause the agency failed to forward Borth’s information to the SSA, Borth argues that the agency ’s conduct8 was wrongful, he was harmed, and the agency should be estopped from denying application of the Pickle disregard. Borth relies on notices sent to him by the agency, as well as a page from the Minnesota Department of Human Services combined manual to support his claim that the agency made the alleged representation . Based on our review of the entire record, however, Borth o ffered no evidence establish ing that the agency represented that it would send information to the SSA on Borth’s behalf for an SSI application . Because the agency made

no such representation, Borth failed to establish the first element of estoppel, and the refore cannot establish the other three elements. Additionally, we note that the record establis hes Borth was notified about his open SSI application and, later, that the application was clos ed. Borth also seeks to apply estoppel based on the agency’s fail ure to provide a one

time notice that he may be eligible for Medicaid, and argues that this notice is required by federal law. Borth cites n o legal authority extending the application of estoppel to an agency’s failure to follow the law. Even so, the notic e requirement applies only t o individuals eligible for the Pickle disregard. See 42 C.F.R. § 435.136 (a) (2015) (stating that an agency must provide one

- time notice for Medicaid eligibility to individuals who meet requirements of 42 C.F.R. § 435.135 (a) or (c)). Bec ause Borth was not eligible for the Pickle d isregard , the agency was not required to provide notice of Medicaid eligibility to Borth. After carefully examining both of Borth’s estoppel theories, we conclude that the commissioner’ s decision was not unsupported by substantial evidence in view of the entire record as submitted, affected by an error of law, nor was it arbitrary and capricious.9 III. Household Size Borth argues that the agency erred bec ause it incorrectly used criteria from the Health Care Program s Manual to determine his household size when the agency should have used SSI criteria to make this determination. Borth contends that his household includes his 21

- year - old son and thus the correct size is two, which affects his income

eligibility for medical assistance

. We note that Bort h did not raise this argument to the HSJ

or before the district court, thus he forfeited the issue for appeal. See Thiele v. Stich , 425 N.W.2d 580, 582

– 83 (Minn. 1988) (holding appellate court “may not consider matt ers not produced and received in evidence below”). Even so, Borth’s argument lacks merit. First, Borth does not dispute that, assuming the Health Care Program s Manual criteria apply, his son would not be included in Borth’s household b ecause he is not und er 21 years old. Minn. Dep’t of Human Servs., Health Care Program s Manual § 17.05 (2012). Second, assuming that the SSI criteria apply, we conclude that Borth’s son still would not be included in his household. The relevant section provides that a person i s considered a child if they “are under 22 years old and [they] are a student regularly attending school or college or training that is designed to prepare you for a paying job.” 20 C.F.R. § 416.1856 (a)(2) (2016 ) (emphasis added). Borth’s testimony before the HSJ established that his son dropped out of c ollege in 2012, and Borth offered no evidence that his son re

- enrolled or was otherwise regularly attending school, college or other training

. Thus, the commissioner’s determination of Borth’s household si ze, based upon the manual criteria , is not unsupported by substantial evidence

. Moreover, to the extent that we assume the commissioner made an error of law in failing to apply SSI criteria, that error10 did not prejudice Borth’ s substantial rights because a pplication of the SSI criteria does not change his household size. We note that Borth has placed evidence in the record that establishes significant medical issues and that the SSA has determined that he is disabled. These facts alone, however, cannot alte r our determination that the commissioner’s decision was not in violation of constitutional provisions, in excess of statutory authority or agency jurisdiction, made upon unlawful procedure, affected by other error of law, unsupported by substantial eviden ce in view of the entire reco rd as submitted, or arbitrary and capricious. Therefore, the district court did not err in affirming the commissioner’s decision to deny medical assistance benefits because Borth does not qualify for the Pickle disregard, Borth failed to offer any evidence that the agency made a representation that would e stop it from denying him medical assistance benefits, and the commissioner’s determination of Borth’s household size was not unsupported by the record and, moreover, did not pr ejudice his substantial rights . Thus, we affirm the district court. Affirmed

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