tax sale - partnership - notice to each partner/owner

Dwyer v. Luzerne Co. Tax Claim Bureau – Cmwlth.Court – February 17, 2015

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/680CD14_2-17-15.pdf?cb=1

 

Commonwealth Court affirmed lower court decision setting aside tax sale of partnership-owned property where Partner/Owner B signed for certified mail notice sent to Partner/Owner A – i.e., no notice delivered separately to non-signing partner A – and no evidence in the record of authority of one to sign for certified mail for the other.

 

The statutory notice provision of  the Law provides that the Bureau shall give notice of the sale “[a]t least thirty (30) days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.” 72 P.S. §5860.602(e)(1).

 

 “Restricted delivery” is mail “delivered only to the addressee or the person he specifically authorizes in writing to receive his restricted delivery mail.” . . . Here, the receipt shows that the certified mail addressed to Owner A was signed for by Owner B. “Even when a return receipt is signed, the signature must belong to someone authorized by the owner to accept certified mail.” . . . .There is nothing in the record evidencing Owner B’s authority to sign for certified mail addressed to Owner A.

 

Because Owner A did not sign for the certified mail addressed to him, in accordance with section 607.1(a) of the Law, the Bureau was required to further investigate his whereabouts. Specifically, section 607.1(a) of the Law requires reasonable notification efforts when “mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee . . . .” 72 P.S. §5860.607a(a).

 

Here, the tax claim bureau conceded that although Owner A did not sign for the certified mail addressed to him, the Bureau did not make any effort to discover his whereabouts and notify him. Thus, the trial court properly concluded that the Bureau failed to comply with the Law’s notice provision.

 

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UC - willful misconduct - offensive language - de minimus conduct - provocation

Campbell v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/369CD14_2-17-15.pdf?cb=1

 

One-time us of the word “bitch” toward a co-worker, in response to that employee’s threatening outburst, was de minimus and not disqualifying willful misconduct, even though use of abusive language violated ER rule.

 

Arnold v. UCBR, 703 A.2d 582 (Pa. Cmwlth. 1997),  “offensive language directed by an employee to an employer, if sufficiently provoked or de minimis, will not constitute willful misconduct.” Id. at 584.   Horace W. Longacre, Inc. v. UCBR, 316 A.2d 110 (Pa. Cmwlth. 1974), and Kowal v. UCBR, 512 A.2d 812 (Pa. Cmwlth. 1986).  Perez v. UCBR, 736 A.2d 737 (Pa. Cmwlth. 1999)

 

 
 

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

UC - willful misconduct - fighting

Gallo v. UCBR – Cmwlth. Court – February 17, 2015 – unpublished memorandum opinion

 

http://www.pacourts.us/assets/opinions/Commonwealth/out/655CD14_2-17-15.pdf?cb=1

 

Physical altercation at work not willful misconduct where

            * claimant acted in self-defense, after being pushed

            * claimant was furthering ER’s interests by giving foreman’s instructions to co-worker

            * incident lasted a matter of seconds

            * claimant’s actions were reasonable under the circumstances

 

The court noted that the UCBR failed to analyze the reasonableness of claimant’s actions, and that the facts found by the UCBR did not support findings that claimant escalated the fight.

 

“[F]ighting is considered inimical to the best interests of the employer and, as such, willful misconduct.” Rivera v. UCBR, 526 A.2d 1253, 1255 (Pa. Cmwlth. 1987). However, “[w]here an employee’s conduct is justifiable or reasonable under the circumstances, it cannot be considered willful misconduct because it is not a willful disregard of standards of behavior that an employer has a right to expect.” Miller v. UCBR, 83 A.3d 484, 488 (Pa. Cmwlth. 2014). An employee’s actions may be reasonable under the circumstances where that employee acts in self-defense in response to another employee’s physical aggression against him. See Mula v. UCBR, 407 A.2d 477, 477 (Pa. Cmwlth. 1979) (recognizing that an employee has a right to defend himself).  

 

Whether an employee’s actions are reasonable depends on the circumstances; our prior cases suggest such circumstances include the degree and duration of the employee’s actions. See Miller, 83 A.3d at 488 (holding that the claimant’s conduct was justified and reasonable where the entire physical altercation consisted of the other co-worker shoving the claimant and the claimant shoving the co-worker back); Peeples v. UCBR, 522 A.2d 680, 682-83 (Pa. Cmwlth. 1987) (holding that the claimant’s striking back at the employee who struck him was in self-defense, reasonable, and justified). Here, the circumstances suggest that Claimant’s actions were in self-defense and reasonable under the circumstances.


 

social security disability - a) lay testimony; b) hypothetical questions; c) conflict between VE testimony and DOTecurity disability

Zirnsak v. Colvin – 3d Cir. – December 9, 2014

 

http://www2.ca3.uscourts.gov/opinarch/141168p.pdf

 

The Third Circuit affirmed the denial of benefits.  The opinion was published on motion of the defendant.

 

Lay testimony properly discounted

An ALJ can consider evidence from non-medical sources to determine the severity of a claimant’s impairments and how those impairments impact the claimant’s ability to work. 20 C.F.R. § 404.1513(d) (2014). Non-medical sources include “spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy.” Id. § 404.1513(d)(4). The Commissioner has issued a policy interpretation ruling “to clarify how [to] consider opinions from sources who are not ‘acceptable medical sources.’” SSR 06-03p, 2006 WL 2329939, at *1 (Aug. 9, 2006).

 

The ALJ’s reasons for rejecting the evidence are supported by substantial evidence, as the evidence did not relate to the narrow question presented to the ALJ: whether Zirnsak was disabled at any point between May 11, 2006 and December 31, 2007. We therefore defer to the ALJ’s credibility assessments. Diaz, 577 F.3d at 506.

 

The two Social Security Rulings relied on by Zirnsak are not designed to provide guidance for how to evaluate lay opinion testimony. The purpose of the first ruling cited, SSR 83-20, is to “describe the relevant evidence to be considered when establishing the onset date of disability,” not whether disability exists. SSR 83-20, 1983 WL 31249, at *1 (1983)

 

The second ruling cited by Zirnsak, SSR 96-7p, lists its purpose as “to clarify when the evaluation of symptoms, including pain, . . . requires a finding about the credibility of an individual [claimant’s] statements.” SSR 96-7p, 1996 WL 374186 (July 2, 1996). Therefore, SSR 96-7p does not address lay witnesses’ accounts of the claimant’s symptoms, but rather the claimant’s description of her own pain. Id. Accordingly, the claimant’s arguments based upon these rulings and certain cases interpreting those rulings are inapposite.

 

Hypothetical question to VE not deficient

“Testimony of vocational experts in disability determination proceedings typically includes, and often centers upon, one or more hypothetical questions posed by the ALJ to the vocational expert.” Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). Usually, the ALJ will ask whether a hypothetical claimant with the same physical and mental impairments as the claimant can perform certain jobs that exist in the national economy. Id. The hypothetical must “accurately portray” any impairments of the claimant. Rutherford, 399 F.3d at 554. This Court has held that to accurately portray a claimant’s impairments, the ALJ must include all “credibly established limitations” in the hypothetical. Id. (citing Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999)).

 

This Circuit does “not require an ALJ to submit to the [VE] every impairment alleged by a claimant.” Rutherford, 399 F.3d at 554. Rather, the ALJ is only required to submit credibly established limitations. Id. Where, as here, a limitation is supported by some medical evidence but controverted by other evidence in the record, it is within the ALJ’s discretion whether to submit the limitation to the VE. Id. While the record in this case is not conclusive as to whether Zirnsak had short-term memory or task problem limitations, there is substantial evidence to support a finding that she did not—namely, her lack of demonstrated problems with activities of daily living and her ability to drive. The ALJ therefore appropriately exercised his discretion when determining which limitations to submit to the VE. In making credibility determinations like this one, this Court will “not substitute our own judgment for that of the fact finder.” Id. at 552. Accordingly, we find that the hypothetical question posed to the VE was not deficient for failure to fully reflect Zirnsak’s limitations.

 

Conflict between VE testimony and DOT

As a general rule, occupational evidence provided by a VE should be consistent with the occupational evidence presented in the DOT. Id. at *2. To ensure consistency, courts have imposed an obligation on ALJs to “[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the [DOT].” Id. at *1; Rutherford, 399 F.3d at 556. Specifically, an ALJ is required to (1) ask, on the record, whether the VE’s testimony is consistent with the DOT, (2) “elicit a reasonable explanation” where an inconsistency does appear, and (3) explain in its decision “how the conflict was resolved.” Burns v. Barnhart, 312 F.3d 113, 127 (3d Cir. 2002). An ALJ’s failure to comply with these requirements may warrant remand in a particular case. Rutherford, 399 F.3d at 557. However, this Circuit has emphasized that the presence of inconsistencies does not mandate remand, so long as “substantial evidence exists in other portions of the record that can form an appropriate basis to support the result.” Id. (citing Boone v. Barnhart, 353 F.3d 203, 209 (3d Cir. 2004)).

 

There is a split of authority as to whether an inherent conflict exists between a job requiring level 3 reasoning and a finding that a claimant should be limited to simple, routine tasks and unskilled work.   E.g., Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009).  See,  Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue, Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874, 2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011) VERSUS  Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007); Clawson v. Astrue, Civil Action No. 11–294, 2013 WL 154206, at *6 (W.D. Pa. Jan. 15, 2013); Simpson v. Astrue, Civil Action No. 10–2874, 2011 WL 1883124, at *7 (E.D. Pa. May 17, 2011).

 

The review of the aforementioned cases demonstrates that there is no bright-line rule stating whether there is a per se conflict between a job that requires level 3 reasoning and a finding that a claimant should be limited to simple and routine work. Without controlling precedent on this issue, this Court finds that the decisions in the Terry and Simpson cases are most applicable to the facts of Zirnsak’s case - any error stemming from an ALJ’s failure to ask about a conflict was harmless where the record established that the claimant in question could perform a level 3 reasoning job, despite a limitation to simple work.

 

Second, as in Terry and Simpson, Zirnsak’s counsel did not identify any inconsistencies between the VE’s testimony and the DOT at her hearing. (Tr. at 59). In fact, Zirnsak’s counsel did not question the VE regarding inconsistencies at all.  Finally, as in Simpson, the occupations listed by the VE were only “a couple examples” of jobs available to Zirnsak. ....Accordingly, the combination of these factors compels our finding that “any conflict [was] not so obvious that the ALJ should have pursued the question.”

 

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