Wednesday, May 28, 2008

disability - findings and reasons

Levine v. Astrue - ED Pa. - March 27, 2008

The court ordered a remand due to several unexplained conflicts and inconsistencies the ALJ’s findings, which are "not for an appellate court to explain....See Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001)."

"Despite finding that the treating physician’s opinion was entitled to controlling weight, ...the ALJ did not discuss these limitations in his assessment of RFC, even though “a clear and satisfactory explanation” must accompany an ALJ’s finding of RFC. Fargnoli, 47 F.3d at 41....The ALJ’s opinion below is deficient in this respect because it does not specifically discuss the mental impairments the treating physician reported."

"The ALJ’s decision did not explain the conflict between the skill level the ALJ found plaintiff to have and the skill requirements of the jobs the VE testified the plaintiff could perform. The VE and the ALJ must explain such inconsistencies on the record, and if they have not, the matter must be remanded. See Burns, 312 F.3d at 127 (requiring that conflicts between an ALJ’s findings and the DOT definitions be explained “on the record and that the ALJ explain in his decision how the conflict was resolved”). This matter is therefore remanded so that the ALJ can explain these inconsistencies."

appeal - time - unreasonably short appeal period

Premier Comp Solutions, LLC v. Dept. of General Services - Commonwealth Court - May 28, 2008

This case involves petitioner's challenge to respondent's award of a single-source contract, in which there was no public notice or competitive bidding, as required by Article III, sec. 22, of the state constitution. The case was brought in the the Commonwealth Court's original jurisdiction.

DGS filed POs, claiming that Premier did not challenge its decision within the 7-day period set out in the regulations. The court held that Premier did not have a legally enforceable interest and thus couldn't challenge the DGS decision in any event.

However, the court did discuss the 7-day appeal period, stating in dicta tha if Premier did have such an interest, then a statute

"foreclosing its right to challenge a contract within such a short period of time [seven (7) days] would implicate due process rights. See Luke v. Cataldi 593 Pa. 461, 932 A.2d 45 (2007). Moreover, such a remedy is not an available or adequate remedy. See Pentlong Corp. v. GLS Capital, Inc., 780 A.2d 734 (Pa. Cmwlth. 2001). If we were to hold otherwise, administrative agency decisions could be made virtually unchallengeable – a decision could made in secret making it impossible for any interested party to take an appeal."

Query: Could this issue be raised in the landlord-tenant context of the 10-day period to appeal an MDJ judgment?

time - computation

Rodriguez v. Board of Probation and Parole - Commonwealth Court - May 28, 2008 - UNREPORTED DECISION

In a case in which a prisoner challenged the actions of the Board as untimely, the court set out the regulatory and statutory rules for counting time:

1 Pa. Code § 31.1 sets forth how days are to be counted for time periods in regulations. It provides “in computing a period of time prescribed or allowed . . . regulations of the agency . . . ., the day of the act, event or default after which the designated period of time begins to run may not be included, . . . . The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a holiday.”4

n. 4 - Section 1908 of the Statutory Construction Act, 1 Pa. C.S. §1908, counts days in statutes in the same manner. It provides: “When any period of time is referred to in any statute, such period in all cases, . . . shall be so computed as to exclude the first and include the last day of such period[.]”