Thursday, November 10, 2011

social security disability - treating physician - clinical/home setting v. work setting

Callahan v. Astrue - ED Pa. - November 7, 2011

Over defendant's objection, the court affirmed the Magistrate Judge's Report and Recommendation recommending that plaintiff’s Request for Review be granted and the case be remanded to defendant for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

The disputes before the Court primarily concern plaintiff’s mental impairments, including her history of alcohol and drug dependency, bipolar disorder, and severe depression.

Evidence that a claimant is doing well in treatment does not contradict a treating physician’s opinion that she is unable to work. “[T]he work environment is completely different from home or a mental health clinic. [A treating physician’s] observation[] that [a patient] is ‘stable and well controlled with medication’ during treatment does not support the medical conclusion that [the patient] can return to work.” Morales, 225 F.3d at 319. For that reason, a treating physician’s opinion that an individual cannot work may “not be supplanted by an inference gleaned from treatment records reporting on [plaintiff] in an environment absent of the stresses that accompany the work setting.” Id.; see also Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 356 (3d Cir. 2008) (reiterating “the distinction between a doctor’s notes for purposes of treatment and that doctor’s ultimate opinion on the claimant’s ability to work”); Nguyen v. Astrue, No. 06-3443, 2008 WL 200175, at *3 (E.D. Pa. Jan. 23, 2008) (holding that when an ALJ rejected a treating psychiatrist’s opinion based on clinical notes that the plaintiff was doing well on medication, the ALJ improperly “substitute[d] his clinical judgment for that of the treating psychiatrist”). The ALJ thus erred in rejecting the doctor's inability-to-work opinion on that basis.

Evidence that plaintiff sometimes performed domestic tasks such as caring for her children and doing chores does not contradict a doctor's opinion that she could not work. Defendant’s Objections omit plaintiff’s repeated statement that the domestic tasks occur only “on a good day[;] a lot of the time I’m unable to do these things so my friend or daughter drop my son off at daycare and I never get up.” This explanation by plaintiff is important. Plaintiff concedes that she might be able to sustain a full-time job for “a week or two” or even a month. However, “not too many bosses are willing to put up with [her]” when her bipolar disorder hits a “down stage.” The ALJ committed legal error when he refused to consider the doctor's opinion.

custody - relocation - consideration of all statutory factors

ED v. MP - Superior Court - November 9, 2011

Which statute applies? - Because Father initiated his relocation request after the effective date of the new Act and Mother’s request for modification of the custody order followed, the provisions of the new Child Custody Act apply here.

Duty of court to consider statutory factors - The court agreed that the trial court failed to consider adequately the ten factors for relocation in section 5337(h), which mandates that the trial court shall consider all of the factors listed therein, giving weighted consideration to those factors affecting the safety of the child. 23 Pa.C.S.A. § 5337(h).

In this case, it cannot be ascertained from the record on appeal whether the trial court considered all of the section 5337(h) factors in reaching its decision. To the extent that the trial court did consider these factors, it did so in a cursory manner without references to the record or explanations for its conclusions.

UC - vol. quit - health reasons - able/available

Tracy v. UCBR - Cmwlth. Court - November 10, 2011 - unreported memorandum opinion

To be eligible for benefits under Section 402(b) of the Law, a claimant must prove that the separation from employment was for a necessitous and compelling reason. Diehl v. UCBR, 4 A.3d 816 (Pa. Cmwlth. 2010), appeal granted, ___ Pa. ___, 20 A.3d 1192 (2011).

To meet that burden, the claimant must demonstrate circumstances which placed a real and substantial pressure upon him or her to terminate employment that would compel a reasonable person to act in the same manner. Smithley v. UCBR, 8 A.3d 1027 (Pa. Cmwlth. 2010). Whether the claimant's termination of employment was for a necessitous and compelling reason is a question of law subject to this Court's plenary review. W. & S. Life Ins. Co. v. UCBR, 913 A.2d 331 (Pa. Cmwlth. 2006).

Health problems, including an emotional or psychological disorder, can constitute a necessitous and compelling reason to terminate employment. Genetin v. UCBR, 499 Pa. 125, 451 A.2d 1353 (1982); Beattie v. UCBR, 500 A.2d 496 (Pa. Cmwlth. 1985). To establish a necessitous and compelling health reason for leaving employment, the claimant must: (1) present competent evidence of an adequate health reason justifying termination of employment; (2) have informed the employer of the health problems; and (3) be able and available to perform work which is not inimical to his or her health, if a reasonable accommodation is made by the employer. Ridley Sch. Dist. v. UCBR, 637 A.2d 749 (Pa. Cmwlth. 1994). The claimant, who has failed to meet any of these requirements, is ineligible for benefits. Ruckstuhl v. UCBR, 426 A.2d 719 (Pa. Cmwlth. 1981).

A necessitous and compelling health reason can be established by any competent medical or non-medical evidence. Cent. Data Ctr. v. UCBR, 458 A.2d 335 (Pa. Cmwlth. 1983). Claimant presented the evidence that she suffered from depression and anxiety. Claimant admitted, however, that she did not "tell …Employer that [she was] leaving because of health reasons." She was also required to demonstrate that she was able to work and available for suitable work, because the Law is not intended to provide health and disability benefits for ill employees. Section 401(d)(1) of the Law, 43 P.S. § 801(d)(1); Genetin. She was on a medical leave and was receiving disability benefits when she left her employment. Her treating physician did not release her to return to work because her condition prevented her from working in any kind of position with or without restrictions. Hence, Claimant failed to establish that she was able to work and available for suitable work.

The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

wages - FLSA - overtime - condit. class certified

Titchenell v. Apria Health Care - ED Pa. - Nov. 8, 2011

Plaintiff Connie Titchenell filed this action against her former employer, defendant Apria Healthcare, Inc. (“Apria”), alleging that defendant violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.

She contends that, as a Customer Service Specialist, she worked ten to fifteen hours per week “off the clock” without compensation to meet defendant’s productivity demands. According to plaintiff, defendant had a company-wide policy or pattern of requiring Customer Service Specialists to work in excess of forty hours per week without overtime pay.

Presently before the Court is Plaintiff’s Amended Motion for Conditional Certification of Collective Class and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) For the reasons stated below, the Court grants plaintiff’s motion.