Wednesday, June 21, 2006

disability - treating physician - pain - credibility - depression

Franklin v. Barnhart - ED Pa. - June 13, 2006

Summary judgment granted to Claimant for closed period of disability of 4+ years to Plaintiff.
inability to do light work -- The ALJ's finding that the claimant (CL) could lift 10 lbs. on sustained basis was not supported by substantial evidence. CL had numerous surgeries to right shoulder but still had significant weakness. Her treating physician of long duration "nowhere" found that she could lift 10 lbs. The ALJ relied on the contrary opinion of a one-time examining physician, whose conclusions were set out only in a check-off box. The court said that the ALJ erred by not giving controlling weight to the treating physician's opinion which reflected expert judgment based on continuing observation over an extended time.

subjective complaints of pain - The ALJ improperly discounted CL's complaint of pain without offering any reasoned basis. The ALJ also erred by not giving "great weight" to the CL's complaints of pain, since they were supported by objective medical evidence. The ALJ decision on pain was not supported by substantial evidence. The record showed "severe pain requiring aggressive pain management."

depression -- ALJ failed to follow Appeals Council prior remand instructions and to give fair consideration to the entire record concerning CL's depression. The ALJ did not consider existing evidence or seek the help of other medical professionals. The ALJ also improperly penalized CL for noting having MH treatment and preferring to stay with her family physician. There was no medical evidence that an MH specialist would have proceeded differently from her family doctor. Moreover, regulations require consideration of a claimant's refusal to see an MH professional, which may have been a result of her depression. And the ALJ again failed to properly credit the opinions of CL's treating physician, improperly preferring, without explanation, the findings in a check-off report of a non-examining state agency psychologist. The 3d Circuit has held such reports to be "weak evidence at best."

special laws - Article III, sec. 32 - class of one

Pa. Turpike Commission v. Attorney General - Supreme Court - June 19, 2006

A law that was applicable to only a single public employer was held to be a "special law" which violated Article III, sec. 32, of the state constitution

Article III, sec. 32 states that " The General Assembly shall pass no local or special law in any case which has been or can be provided for by general law and specifically the General assembly shall not pass any local or special law" about a list of 8 specific areas, including ones "regulating labor, trade, mining or manufacturing." It also says: "Nor shall the General Assembly indirectly enact any special or local law by the partial repeal of a general law; but laws repealing local or special acts may be passed."

The court held that there was "no rational reason" for the differential treatment established by the statute" and that there was "nothing distinctive" about the two differently-treated entitited that required different treatment. The acts classifications "does not rest upon some ground of difference or any real distinction....." The "narrow classification in the Act....does not bear a reasonable relationship" to the allged statutory purpose. In addition, the act created a class of one, with no reasonable prospect of another members being able to join the class in the future.

debt collection - FDCPA - false threats - attorney letterhead - class certification

McCall v. Drive Financial Services - ED Pa. - June 19,2006

The court granted a motion for class certification in a Fair Debt Collection Practices Act, 15 USC 1692 et seq., case in which defendant collection agency was alleged to have sent letters purporting to be from an attorney, on the attorney's ostensible letterhead. The letter threatened suit by the attorney, who is not admitted to practice in Pennsylvania.

Defendant's allegation that there was a conflict between the class and the named plaintiff was dismissed. Named plaintiff had a 15 year-old robbery conviction, which the court said was factually unrelated to his case and to Defendant's alleged violation of the FDCPA.

bankruptcy - "debt relief agency" provisions - standing to challenge

Geisenberger v. Gonzales - ED Pa. - June 19, 2006

The court dismissed the constitutional challenge of "practicing bankruptcy attorney" to the "debt relief agency" provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), 11 USC sec. 526-528.

The court held that there was no justiciable case or controversy under Article III, sec. 2, of the US Constitution, since the attorney had not suffered and was not about to suffer an "injury in fact." The court said that the attorney was "requesting an advisory opinion" from the court, which held that without any injury in fact, plaintiff did not have standing to bring the case.

custody - relocation

Ketterer v. Seifert - Superior Court - June 20, 2006

The court affirmed the trial court's denial of mother's petition to relocated to California with parties' 14 y/o son, despite child's expressed preference for the proposed move. An existing order -- which the court said "has been working well for several years" -- gave mother majority physical custody during the school year and shared custody over the summer. Father's family was mostly in Pennsylvania, and Mother's in California.

The Court focused on the fact that mother failed to prove the first prong of the Gruber test, 583 A2d 434 (Pa. Super. 1990) -- that the moved would "substantially improve the quality of life" for the mother or child. The court specifically rejected mother's primary claim of economic need and the alleged economic benefit that the move would bring.

Noting that the child had a closer relationship with mother than father, the court rejected the child's preference because it was not "based upon good and substantial reasons." The court also mentioned that mother "has had approximately nine different address changes" since her marriage to her current husband 9 years ago.

delay damages - contract action - Pa. R.C.P. 238

Touloumes v. E.S.C., Inc. - Pennsylvania Supreme Court - June 19, 2006

The court held (5-1) that Pa. R.C.P. 238 does not apply to a contract action seeking to recover damages for injury to property.

The dissent (Newman, J.) said that all of the elements of the rule are present, that the rule is "clear and free from all ambiguity" and should apply. The "Majority's exploration of the intent of the Rule was not required because the Rule itself explicity provides that Appellants are entitled to delay damages.

The text of the rule is at