Thursday, January 28, 2010

disability - duty of ALJ to develop record - pro se claimant - mental health issues

Comiskey v. Astrue - ED Pa. - January 2010
This case was remanded, consistent with Magis. Judge's recommendation, for further development of the record.
The Third Circuit repeatedly has recognized that an ALJ must “assume a more active role when the claimant is unrepresented.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); see also Reefer, 326 F.3d at 380; Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980). An ALJ “owes a duty to a pro se claimant to help him or her develop the administrative record.” Reefer, 326 F.3d at 380; see also Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (“ALJs have a duty to develop a full and fair record in social security cases.”). In particular, “‘[w]hen a claimant appears at a hearing without counsel, the ALJ must scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.’” Reefer, 326 F.3d at 380 (quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (internal citation and quotation marks omitted)); see also Ventura, 55 F.3d at 902 (“[A]n ALJ must secure relevant information regarding a claimant’s entitlement to social security benefits.”). Although lack of counsel alone is not cause for remand when the claimant knowingly has waived the right to counsel, remand is appropriate when the lack of counsel prejudices the claimant or causes unfairness at administrative level, such as when the ALJ fails to adequately develop the administrative record. Livingston, 614 F.2d at 345.
The court was especially troubled by the lack of any "indication that the ALJ made any effort to obtain plaintiff’s medical records from any of the treating sources he identified. The need for such information was particularly important given the conflicting opinion evidence in the record regarding the extent to which plaintiff’s medical and physical impairments limited his ability to work.

Although the Third Circuit has declined to “say that an [ALJ] must search out all the relevant evidence which might be available,” Hess v. Sec’y of Health, Educ. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974), in the circumstances presented here [where the claimant had a mental impairment] the ALJ should have obtained medical records from plaintiff’s treating sources as part of his obligation to help the pro se plaintiff develop the administrative record. See Reefer, 326 F.3d at 380 (stroke pro se claimant); Isaac v. Astrue, No. 08-1661, 2009 WL 1492277, at *13 (W.D. Pa. May 28, 2009); Sloss v. Astrue, No. 07-344, 2008 WL 2355853, at *2 (W.D. Pa. June 9, 2008)

In addition to the heightened duty of care an ALJ owes when the claimant is unrepresented, the ALJ is also obliged, under the applicable regulations, to ensure that the claimant’s complete medical history is developed for at least the twelve months preceding the month in which the claimant filed his application. 20 C.F.R. §§ 404.1512(d), 416.912 (d); see also 42 U.S.C. § 423(d)(5)(B).16 Thus, at a minimum, the ALJ should have obtained plaintiff’s medical records from those medical sources from which plaintiff received treatment in the twelve months prior to October 2006, when plaintiff filed his applications for DIB and SSI.

While the ALJ’s failure to develop the record must have prejudiced the claimant in order for remand to be appropriate, see Livingston, 614 F.3d at 345, the Third Circuit has not required the claimant to produce the very records to be considered in order to show prejudice, see Reefer, 326 F.3d at 380...; Dobrowolsky, 606 F.2d at 407-08...; Jozefick v. Shalala, 854 F. Supp. 342, 349 (M.D. Pa. 1994) (noting that the Third Circuit has remanded cases “in order to more fully develop the record without requiring the claimant to make a specific proffer of the evidence that would be presented to the ALJ on remand”). Rather, remand is appropriate when the ALJ “has failed to exercise his authority to attempt to fill significant evidentiary gaps that are material to the disability determination.” Id.

wages - FLSA - overtime - professional capacity

Pignataro v. Port Authority of NY and NJ - Third Circuit - January 27, 2010
This case concerns helicopter pilots, not likely to be our clients, but it cites important general principles of FLSA law.
Helicopter pilots were held to be not exempt as “professional” employees under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1), and therefore are entitled to mandatory time-and-a-half overtime compensation. The court award them two years of damages rather than three, because it concluded that the employer's FLSA violation was not willful.
The FLSA mandates that if an employee works more than forty hours per week, he must be compensated for overtime hours at a rate at least one-and-one-half times the employee’s regular rate. 29 U.S.C. § 207(a)(1). Employees who work in a “professional capacity,” however, are exempt from this rule.
Exemptions from the FLSA are to be narrowly construed against the employer, and the employer has the burden of establishing an exemption. Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1143 (3d Cir. 1983). Whether an employee is an exempt professional is a mixed question of law and fact.
To establish that the employer's violation of the FLSA was willful, plaintiffs must prove that the employer knew it was violating the FLSA or acted in reckless disregard of whether it was violating the FLSA. McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 135 (1988). Whether a violation of the FLSA is willful is a question of fact that is reviewed for clear error. See Bianchi Trison Corp. v. Chao, 409 F.3d 196, 208 (3d Cir. 2005).

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