Monday, October 24, 2005

UC - willful misconduct - decision of another agency is not WM per se

Woods Services v. UCBR - Commonwealth Court - October 2, 4 2005

http://www.courts.state.pa.us/OpPosting/CWealth/out/784CD05_10-24-05.pdf

Held, determination of county child/youth services (CYS) agency that an employee of a residential treatment facility "abused" one of his clients "does not constitute willful misconduct per se." The finding is enough to terminate a claimant's employment, which the employer had to do to retain its DPW license to run the facility. Without more, however, the CYS determination does not support a finding of willful misconduct. The employer "failed to present any admissible testimony or evidence, independent of the…. determination, to support a finding of willful misconduct."

The employer did only a cursory investigation. Its proffered testimony was hearsay and rejected. Claimant and an eyewitness testified. The Board resolved all credibility issues in favor of the claimant and his witness. "Our review of the record supports the Board's finding the Employer failed to directly link the CYS finding of child abuse to Claimant for purposes of establishing willful misconduct….."

Donald Marritz
MidPenn Legal Services

disability - fibromyalgia - credibility - treating physician

Kurilla v. Barnhart - ED Pa. - October 18, 20

http://www.paed.uscourts.gov/documents/opinions/05D1280P.pdf

Case remanded (sentence four, 42 USC 405(g)) because of ALJ errors on credibility and use of reports of treating physicians.

The ALJ's credibility finding was not supported by substantial evidence or made in accordance with SSR 96-7p, which requires careful consideration of statements about symptoms such as pain, which may suggest a greater impairment than shown by the objective medical evidence alone. This is especially true in the case of fibromyalgia, an impairment which is "mysterious and elusive....because it lacks both a clear etiology and objective diagnostic testing capable of verifying the legitimacy of accompanying symptoms."

The finding and statements of claimant's treatment providers was not given sufficient weight. If they are supported by medical date, they should be accepted absent contradictory medical evidence (citing 3d Cir. precedent). The record about fibromyalgia consisted solely of claimant's complaints and his treating physician's diagnosis that he was disabled. Without any evidence to the contrary than the ALJ's erroneous determination that claimant lacked credibility, the court concluded that the ALJ's rejection of the treating physician's opinion was impermissible, because it was not based on substantial evidence.

The court remanded the case for a new consultative exam about the effects of claimant's fibromyalgia on his RFC and a new RFC assessment by a physician, preferably a rheumatologist who has experience and an expertise in fibromyalgia and its related symptoms.

The court did not simply reverse and grant benefits, because "granting...benefits at Step 4 improperly truncates the sequential evaluation process. Step 5 of the process is necessary to determine whether the claimant could perform a less demanding level of work, such as sedentary work."

Donald Marritz
MidPenn Legal Services

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