Wednesday, August 06, 2008

disability - misc. issues

Burton v. Astrue - ED Pa. - July24, 2008

ALJ decision erroneous and case remanded.

* ALJ failed to consider evidence subsequent to date last insured (DLI) - “Retrospective diagnosis of an impairment, even if uncorroborated by contemporaneous medical records, but corroborated by lay evidence relating back to the claimed period of disability can support a finding of past impairment.” Newell v. Comm’r, 347 F.3d 541, 547 (3d Cir. 2003)...As the Third Circuit wrote in another case, “[T]he lack of contemporaneous medical evidence of an objective nature is not necessarily determinative as to the onset date, and to the extent the ALJ’s decision was based on a legal determination that the onset date of an impairment had to be proved by such medical evidence, it is erroneous.” Kelley v. Barnhart, 138 Fed. App’x 505, 508 (3d Cir. 2005). The court remands this matter for the ALJ to reconsider his treatment of Plaintiff’s medical evidence subsequent to her date last insured

* ALJ used improper measure of severity - The “burden placed on an applicant at step two [of the sequential disability evaluation] is not an exacting one.” McCrea v. Comm’r of Soc. Sec. Admin., 370 F.3d 357, 360 (3d Cir. 2004). Rather, The step-two inquiry is a de minimis screening device to dispose ofgroundless claims. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality or a combination of slight abnormalities which have no more than a minimal effect on an individual’s ability to work. . . Only those claimants with slight abnormalities that do not significantly limit any basic work activity can be denied benefits at step two. If the evidence presented by the claimant presents more than a slight abnormality, the step-two requirement of “severe” is met, and the sequential evaluation process should continue. Reasonable doubts on severity are to be resolved in favor of the claimant. Newell, 347 F.3d at 546 (internal citations and quotations omitted).

* failure to get treatment - The adjudicator must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. SSR 96-7p

* slowly progressive impairments - “Particularly in the case of slowly progressive impairments, it is not necessary for an impairment to have reached listing severity (i.e., be decided on medical grounds alone) before onset can be established.” SSR 83-20....With slowly progressive impairments, it is sometimes impossible to obtain medical evidence establishing the precise date an impairment became disabling. Determining the proper onset date is particularly difficult, when for example, the alleged onset and the date last worked are far in the past and adequate medical records are not available. In such cases, it will be necessary to infer the onset date from the medical and other evidence that describe the history and symptomatology of the disease process. . . . . . . . How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred.

mortgage foreclosure - Rooker-Feldman Doctrine

Laychock v. Wells Fargo Home Mortgage - ED Pa. - July 23, 2008

The Rooker-Feldman doctrine barred borrower's predatory lending claims in federal court against lender, where lender got default judgment mortgage foreclosure in state court, and state court refused borrower's petition to open judgment.

The Rooker-Feldman Doctrine “prevents ‘inferior’ federal courts from sitting as appellate courts for state court judgments.” In re Knapper, 407 F.3d 573, 580 (3d Cir. 2005). Rooker-Feldman applies when: (1) “the federal claimwas actually litigated in state court prior to the filing of the federal action” or (2) “if the federal claim is inextricably intertwined with the state adjudication.” Id.

A federal and state case are “inextricably intertwined” when “the federal court must take an action thatwould negate the state court’s judgment” orwhen the plaintiff’s sought relief “would prevent a state court from enforcing its orders.” Id. at 581. “If the relief requested in the federal action requires determining that the state court’s decision is wrong or would void the state court’s ruling, then the issues are inextricably intertwined and the district court has no subjectmatter jurisdiction to hear the suit.”

The doctrine is implicated here, because all of plaintiff's claims would require the federal court to find that the state court decision, from which there was no appeal, was wrong.

real property - tax sale - notice

Wallace v. Tax Claim Bureau - Cmwlth. Court - 07-28-08 - UNREPORTED MEM. DECISION

Although decedent's survivors had actual notice of upcoming tax sale, they did not receive required statutory notice under Real Estate Tax Sale Law, 72 P.S. 5860.607(a), so tax sale was set aside.

The notice provisions of the RETSL "are to be strictly construed." "Strict compliance with the notice porvisions is essential to prevent the deprivateion of property without due process."

Here, tax claim bureau knew that there were notice problems. The official notice was returned marked "unclaimed." The sheriff's affidavit of posting noted the the property owner was "deceased." And someone other than the owner signed for a notice. All of this triggered a "statutory obligation to go beyond the notice requirements found in Section 602 of the ERTSL and conduct the additional notification efforts provided in Sectin 607.1," which the tax claim bureau failed to do. The TCB made no "additional notification efforts" that "ordinary common sense business practices would dictate" under the circumstances.

This was not a "techical defect" which could be overlooked in "very narrow circumstances. Failure to comply with the statutory notice requirement was a "substantive deficiency" since appellants "never received official, statutorily required notice of the pending tax far as the appellant was denied the information necessary and the reasonable opportunity to avoid the pending tax sale."