Friday, October 17, 2008

disability - mental impairment - severity

Velazquez v. Astrue - ED Pa. - October 2008

Finding of non-severity of mental impairment not supported by substantial evidence. Case remanded.

" In order to meet the step two severity test, an impairment need only cause a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921; S.S.R. 96-3p, 85-28. The Third Circuit Court of Appeals has held that the step two severity inquiry is a “de minimus screening device to dispose of groundless claims.” McCrea v. Comm. of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004); Newell v. Comm. of Soc. Sec., 347 F.3d 541, 546 (3d Cir. 2003). “Any doubt as to whether this showing has been made is to be resolved in favor of the applicant.” Id.

The medical records from 2000 and 2001 show serious symptoms and limitations arising from Velazquez’s mental impairment including GAF scores between 45 and 58....Although the ALJ listed most of the evidence, she did not mention the GAF scores or sufficiently explain why the state medical consultant’s conclusion of non-severity was most consistent with the evidence, especially in light of the many serious findings from Velazquez’s treating and examining mental health professionals.

While the evidence may not establish disabling depression, the evidence also does not appear to establish that Velazquez’s depression was groundless. As a result, on remand, the ALJ shall re-assess her determination regarding Velazquez’s depression and support her decision with substantial evidence. Likewise, the ALJ shall conform her RFC assessment and any hypothetical questions to reflect her properly supported conclusions.

evidence - clear and convincing evidence

Kistler v. State Ethics Commission - Cmwlth. Court - October 17, 2008

" Clear and convincing proof is evidence that is so clear, direct, weighty and convincing that it enables the trier of fact to come to a clear conviction, without hesitance, of the truth of the precise facts in issue. In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998)."