Thursday, September 18, 2008

disability - failure to consider evidence - remand

Magid v. Astrue - ED Pa. - September 18, 2008

The ALJ failed to mention--and presumably consider--the opinion of an examining state agency psychologist, Dr. Gensemer.

"In coming to the determination that Magid did not have any mental limitations that would prevent him from performing “at least semi-skilled work,” it is unclear whether or not the ALJ completely ignored Dr. Gensemer’s opinion. Thus, the case must be remanded for the ALJ to reconsider the medical evidence in the record regarding Magid’s mental limitations and explain his reasoning for accepting and rejecting the various opinions. See Burnett v. Comm’r of Social Sec. Admin., 220 F.3d 112, 121-22 (3d Cir. 2000).

"The above analysis demonstrates that the ALJ failed to fully consider the record before him, and thus, the court will not make a ruling on Magid’s remaining arguments regarding whether or not the ALJ erred in determining that Magid could perform medium work and return to his past relevant work. "

UC - willful misconduct - conscious disregard

Patterson v. UCBR - Commonwealth Court - September 12, 2008 - unreported memorandum opinion

Housekeeper not guilty of willful misconduct because employer did not show willful/intentional violation of his job duties, only that his performance fell below employer standards.

The court relied on Rung v. UCBR, 689 A.2d 999 (Pa. Cmwlth. 1997), holding that there must be any intentional disregard of the employer's interests, and BK Foods v. UCBR, 547 A.2d 873 (Pa. Cmwlth. 1988), holding that there is a differenence between "mere incompetence, inexperience or inability" and a "conscious disregard of the employer's interest." McCrea v. UCBR, 487 A.2d 69 (Pa. Cmwlth 1986).

There was no showing here of conscious disregard or unwillingness to to work to the best of his ability. Even under the Board's own findings, the most that was shown was a possible mistake about work assignments.

There was a dissent, stating the evidence showed that claimant knew what was he was supposed to do but didn't do it.