Saturday, March 04, 2006

Pennsylvania Bulletin of March 4th*

Here’s the link

Of possible interest—

- IRRC – LIHEAP regs approved

- public utilities – telephone regs – petition of Consumer Advocate to amend chapter 63

* The only date which is a command

disability - consid. of evidence - duty to develop record - scope of magistrate judge's duty

Roman v. Barnhart - ED Pa. - February 28, 2006

This case involves a 10 year-old boy with hearing and speech impairment. The case was remanded because ALJ did not explain his consideration of the records of the child's primary physician and "did not appear to give meaningful consideration to the non-medical evidence from [the child's] teacher...." This evidence was directed "to be evaluated and subjectively considered by the ALJ."

An ALJ need not always give a comprehensive explanation for the rejection of evidence. In most cases a sentence or short paragraph will suffice. Here however "it does seem to be an inescapable conclusion the ALJ did fail to directly address evidence from" the teacher.

The Magistrate's Report did discuss this evidence. However, in doing so, the Magistrate "exceeded her limited scope of review...[I]t is rectify ALJ errors by making an independent analysis and relying on information not relied upon by the ALJ....rather than focusing only on the reasons set forth by the ALJ."

There is also a good discussion of the ALJ's duty to develop the record adequately, even where the claimant is represented by counsel. When the ALJ is aware of a report that is "reasonably necessary for the full presentation of a case," the ALJ on his/her own initiative "may" issue subpoenas for the material documents.

Donald Marritz
MidPenn Legal Services

disability - treating physician rule, etc.

Somenski v. Barnhart - ED Pa. - February 28, 2006

Summary judgment for Plaintiff.

treating physician - phys. not an advocate; opinion based on objective evidence
Good review of 3d Cir. law on treating physician rule, which the ALJ improperly discounted. The ALJ erred in holding that the doctor's opinion was undermined by the fact that he "was an advocate" for plaintiff in a worker's comp. proceeding. The adversarial nature of W/C proceedings does not affect the reliability of the [doctor's] testimony. An ALJ "may not disregard medical findings of examining physicians merely because it was offered as part of a worker's compensation hearing..."

In addition, the physician's opinions were not based on the claimant's subjective complaints but on an objective, detailed assessment of Plaintiff's functioning.

finding of another agency
Plaintiff had been granted disability benefits by a US Dept. of Labor ALJ in a Longshoreman & Harbor Worker's Comp. case, 33 USC 901 et seq. While that decision is not binding, 20 CFR 404.1504, is "entitled to substantial weight....If the ALJ reaches a contrary conclusion, the ALJ must offer an explanation of why he rejected the other agency's finding." The ALJ in this case "did not specify what amount of weight, if any, he accorded the... decision not did he explain his reasons for rejecting it, beyond the fact that it was not binding. Under controlling Third Circuit law, this was error."

subjective complaints
Claimant's accounts of pain were corroborated by the unrebutted opinions of all physicians. Even though an ALJ's credibility determination is "entitled to great deference," subjective symptoms must be considered and "may not be discounted if reasonably consistent with the objective evidence and other evidence in the record." Here the ALJ improperly discounted unrebutted medical opinions and "erroneously supplanted" the doctor's opinions "with his personal speculation."

V/E - hypo

The hypothetical question to the vocation expert must fairly encompass "all of an individual's significant limitations that are supported by the record." (emphasis in original) The hypo in this case was lacking because if did not take into account the severity of the plaintiff's psych. problems or any of his exertional limitations.

Noting a) that the 3d Circuit has expressed "frustration with the delays in disability determinations," b) that plaintiff applied for benefits more than 8 years ago, c) that the extensive record is unlikely to change and "constitutes substantial evidence that [plaintiff] is precluded from engaging in substantial gainful activity," the court awarded benefits.

Donald Marritz
MidPenn Legal Services