SSA Issues New Rules on Medical Equivalence in Disability Determinations

The Social Security Administration has published final rules revising the the processing of claims for disability benefits under Titles II and XVI of the Social Security Act. These revisions make the language in the rules used under Title II for making findings about medical equivalence consistent with the language in the rules used under Title XVI of the Act.

The revisions also clarify SSA's rules about the evidence used to making findings about medical equivalence for adults and children. The rules explaining the Listing of Impairments and how impairment(s) can meet a listing are also updated and clarified.The new rules will be effective on March 31, 2006.

Final Rules

Pennsylvania Bulletin of March 18, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-11/index.html

Of possible interest-

- evidence - Rule 404 - character evidence - not admissible generally - exceptions
http://www.pabulletin.com/secure/data/vol36/36-11/419.html

- courts - judicial discipline court - internal operating procedure
http://www.pabulletin.com/secure/data/vol36/36-11/418.html

- Commonwealth Court - sessions for 2007
http://www.pabulletin.com/secure/data/vol36/36-11/422.html

- local courts rules - - custody - pretrial conferences
Westmoreland County http://www.pabulletin.com/secure/data/vol36/36-11/421.html
Northampton Copunty http://www.pabulletin.com/secure/data/vol36/36-11/420.html

- welfare - payments to nursing facilities - final rates 2005-6
http://www.pabulletin.com/secure/data/vol36/36-11/448.html

- welfare - peer groups - nursing and special rehab facilities
http://www.pabulletin.com/secure/data/vol36/36-11/449.html

disability - depression/alcoholism - prescribed treatment

Bodner v. Barnhart - ED Pa. - March 14, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0316P.pdf

Alcohol/depression case. Case remanded where

a) There was no evidence in the record that claimant could work when sober and compliant with medications. There was no support in the medical record for this finding, since claimant had not been directed to take psychotropic drugs. A claimant needn't take palliative drugs unless prescribed. The ALJ impropely ignored the treating physician's opinions in this regard.

b) The ALJ did not follow the procedure in SSR 82-59 concerning failure to follow prescribed treatment.

Some key facts -
- Claimant (CL) testified that he had been sober since April 2002
- Treating psych. said CL couldn't complete normal work day/week
- VE testified that CL couldn't do any work if unable to complete normal work day/week
- No psychotropic meds prescribed because of CL's liver disease and other health problems

consumer - predatory lending - statute of limitations - equit. tolling - discovery rule

Wise v. Mortgage Lenders Network USA - ED Pa. - March 13, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0317P.pdf

Lender and mortgage broker moved to dismiss various consumer claims under Rule 12(b)(6) based on statute of limitations grounds. Motion denied.

equitable tolling
Dismissal of federal statutory claims was denied under equitable tolling doctrine, because the complaint alleged that the defendants had actively misled the plaintiffs about their claims. The "doctrine of 'equitable tolling' operates to stop the statute of limitations from running whete the claim's actual accrual date has alreayd passed...It thus allows a court 'to extend a statute of limitations on a case-by-case basis to prevent inequity." Fraudulent concealment was alleged, and plaintiffs showed that they had exercised reasonable diligence in investigating and bringing the claims. Plaintiffs' complaint alleged "facts that suggest an active attempt....to intentionally defraud them by exploiting their financial need and concealing material terms of the loan.

discovery rule
Dismissal of state fraud and breach of fiduciary claim was similarly rejected by application of the "'discovery rule' exception to the statute of limitations which delays the running of the statute until the plaintiff knew, or through the exercise of reasoanble diligence should have known, of the injury and its cause....[W]hen the underlying events being sued upon sound inherently in fraud or deceit...that, without more, will toll the statute of limitations until such time as the fraud has been revealed, or should have been revealed by the exercise of due diligence by the plaintiff.'"

custody - relocation - no prior custody order

Collins v. Collins - Superior Court - March 13, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s62032_05.pdf

Trial court's order denying mother's request to relocate was reversed on appeal.

Relocation -- The Gruber factors, while important, are but one aspect of the overall best interest analysis; they "take into account only...a small corner of the best interest cosmos." Where there is no existing prior order, it is error to place a higher burden on the relocating parent and to decide relocation first, then primary custody. "Nothing in our case law suggests that...where primary custody must be decided in the context of a relocation request, relocation should take a place of prominence and be the subject of an initial decision, which then leads inexorably to the custody decision....The focus of the court must be on determining which parent and which living situation provides a familial setting that better serves the children's best interests."

Stability -- Stability is important, but physical stability, i.e., staying in the same home, is just one factor. "A child's sense of stability involves more than just physical structures and location; stability with regard to caregiver and patterns of car must also be considered."

Primary caretaker - age of children -- Primary caretaker is an important factor no matter what the children's ages. There is "no support in the case law" for a contrary notion, which the lower court expressed.

Disposition - The appellate court has the option to decide the case on the merits where the record is sufficiently developed.

due process - post-hearing addition to order

In re D.G. - Superior Court - March 10, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/s67030_05.pdf

Appellant/father's due process rights were violated when the court in a dependency case added a provision to its order, ex parte, after the hearing, without giving father notice or an opportunity to be heard on the issue. The addition was a no-contact order concerning one of the witnesses.

An ex parte injunction can issue on where it is evident from the record that there would be immediate and irreparable injury if the injunction were delayed until notice could be given and a hearing held. There was no such showing in this case, nor was the post-hearing discussion transcribed.

Pennsylvania Bulletin of March 11, 2006

The link http://www.pabulletin.com/secure/data/vol36/36-10/index.html

Of possible interest

- drivers licenses - occupation limited licenses
http://www.pabulletin.com/secure/data/vol36/36-10/391.html

- recent statutes
http://www.pabulletin.com/secure/data/vol36/36-10/387.html

- labor & industry - public comment on combined agency state plan - VR/OVR
http://www.pabulletin.com/secure/data/vol36/36-10/403.html

- agriculture - referendum on continuation of state potato research program
http://www.pabulletin.com/secure/data/vol36/36-10/393.html

firearms - license - disclosure of social security number

Stollenwerk v. Miller, ED Pa. - February 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0225P.pdf

The court held that the state Uniform Firearms Act requirement that an applicant to buy or carry a handgun disclose his/her Social Security number is invalid under the federal Privacy Act, PL No. 93-579, sec. 7, 88 Stat. 1896, 1909 (1974), reprinted in 5 USC 552a note (2003).

Pennsylvania Bulletin of March 4th*

Here’s the link

http://www.pabulletin.com/secure/data/vol36/36-9/index.html


Of possible interest—

- IRRC – LIHEAP regs approved
http://www.pabulletin.com/secure/data/vol36/36-9/369.html

- public utilities – telephone regs – petition of Consumer Advocate to amend chapter 63
http://www.pabulletin.com/secure/data/vol36/36-9/358.html


* The only date which is a command

disability - consid. of evidence - duty to develop record - scope of magistrate judge's duty

Roman v. Barnhart - ED Pa. - February 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0248P.pdf

This case involves a 10 year-old boy with hearing and speech impairment. The case was remanded because ALJ did not explain his consideration of the records of the child's primary physician and "did not appear to give meaningful consideration to the non-medical evidence from [the child's] teacher...." This evidence was directed "to be evaluated and subjectively considered by the ALJ."

An ALJ need not always give a comprehensive explanation for the rejection of evidence. In most cases a sentence or short paragraph will suffice. Here however "it does seem to be an inescapable conclusion the ALJ did fail to directly address evidence from" the teacher.

The Magistrate's Report did discuss this evidence. However, in doing so, the Magistrate "exceeded her limited scope of review...[I]t is impermissible...to rectify ALJ errors by making an independent analysis and relying on information not relied upon by the ALJ....rather than focusing only on the reasons set forth by the ALJ."

There is also a good discussion of the ALJ's duty to develop the record adequately, even where the claimant is represented by counsel. When the ALJ is aware of a report that is "reasonably necessary for the full presentation of a case," the ALJ on his/her own initiative "may" issue subpoenas for the material documents.

Donald Marritz
MidPenn Legal Services

disability - treating physician rule, etc.

Somenski v. Barnhart - ED Pa. - February 28, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0240P.pdf

Summary judgment for Plaintiff.

treating physician - phys. not an advocate; opinion based on objective evidence
Good review of 3d Cir. law on treating physician rule, which the ALJ improperly discounted. The ALJ erred in holding that the doctor's opinion was undermined by the fact that he "was an advocate" for plaintiff in a worker's comp. proceeding. The adversarial nature of W/C proceedings does not affect the reliability of the [doctor's] testimony. An ALJ "may not disregard medical findings of examining physicians merely because it was offered as part of a worker's compensation hearing..."

In addition, the physician's opinions were not based on the claimant's subjective complaints but on an objective, detailed assessment of Plaintiff's functioning.

finding of another agency
Plaintiff had been granted disability benefits by a US Dept. of Labor ALJ in a Longshoreman & Harbor Worker's Comp. case, 33 USC 901 et seq. While that decision is not binding, 20 CFR 404.1504, is "entitled to substantial weight....If the ALJ reaches a contrary conclusion, the ALJ must offer an explanation of why he rejected the other agency's finding." The ALJ in this case "did not specify what amount of weight, if any, he accorded the... decision not did he explain his reasons for rejecting it, beyond the fact that it was not binding. Under controlling Third Circuit law, this was error."

subjective complaints
Claimant's accounts of pain were corroborated by the unrebutted opinions of all physicians. Even though an ALJ's credibility determination is "entitled to great deference," subjective symptoms must be considered and "may not be discounted if reasonably consistent with the objective evidence and other evidence in the record." Here the ALJ improperly discounted unrebutted medical opinions and "erroneously supplanted" the doctor's opinions "with his personal speculation."

V/E - hypo
The hypothetical question to the vocation expert must fairly encompass "all of an individual's significant limitations that are supported by the record." (emphasis in original) The hypo in this case was lacking because if did not take into account the severity of the plaintiff's psych. problems or any of his exertional limitations.

remedy
Noting a) that the 3d Circuit has expressed "frustration with the delays in disability determinations," b) that plaintiff applied for benefits more than 8 years ago, c) that the extensive record is unlikely to change and "constitutes substantial evidence that [plaintiff] is precluded from engaging in substantial gainful activity," the court awarded benefits.

Donald Marritz
MidPenn Legal Services

real estate - sales - disclosure - adjacent group home

Colaizzi v. Beck - Superior Court - March 1, 2006

www.courts.state.pa.us/OpPosting/Superior/out/a41023_05.pdf

Held, it was not a violation of the consumer protection law, 73 P.S. 201-1 et seq., or common law fraud for a seller of real property to fail to disclose to buyer that the adjacent property was the site of a group home for mentally-challenged adults.

Sellers signed a disclosure form under the Real Estate Seller Disclosure Law, 68 Pa. C.S. 7301 et seq., which said that he were not aware of "any condition that would affect the use and/or enjoyment of the property or the fair market value and/or title of the property." The appellate court reject that buyer argument that the lower court erred by focusing solely on the subject property rather than considering adjacent properties. The court said that there was no authority for such a reading of the law. "Moreover, even if we were persuaded by Appellant's argument, we find that the existence of a group home for mentally-challenged adults on the adjacent property does not constitution a 'legal issue'" under the RESDL.

Donald Marritz
MidPenn Legal Services

child witness - Tender Years Hearsay Act - psych. exam

Commonwealth v. Shearer - Superior Court - March 1, 2006

www.courts.state.pa.us/OpPosting/Superior/out/e04010R_02.pdf

Superior Court reversed the trial court's order that a child-victim be examined by a private psychologist retained by alleged abuser prior to a competency determination by trial court under the Tender Years Hearsay Act, 42 Pa. C.S. 5985.1.

The appellate court said that it was "beyond doubt that a court-ordered psychiatric examination intrudes into an important aspect of human privacy concerns….While trial courts must regularly make competency rulings, a court-ordered psychological examination should never be the starting point for such a determination…..Such an examination should not be ordered unless the record demonstrates the existence of a 'compelling reason' for the examination….The fact that a witness is an alleged child victim of sexual abuse does not, in and of itself, negate the requirement of demonstrating the necessity for court-ordered psychological examination."

The court agreed with the Commonwealth that there was no evidence showing that the child witness "suffers from any mental condition that would require a psychiatric examination before a competency hearing can be conducted."

Donald Marritz
MidPenn Legal Services

disability - depression - onset date - evidence

Payton v. Barnhart - ED Pa. - February 24, 2006

http://www.paed.uscourts.gov/documents/opinions/06D0223P.pdf

The ALJ's determination of onset date in closed period case was inconsistent with the medical evidence and not supported by substantial evidence where the sole support of the ALJ decision was a "'non-examining' State Agency 'checklist.'"

The evidence showed that claimant's depression "did not suddenly become a severe impairment" on the date found by the ALJ but existed prior to that point, as established by the medical evidence.

The court reversed the ALJ decision rather than remanding the case, because the administrative record was "fully developed and…substantial evidence on the record as a whole indicates that the cliamant is disabled and entitled to benefits."

Donald Marritz
MidPenn Legal Services

Pennsylvania Bulletin of February 28, 2006

Here's the link http://www.pabulletin.com/secure/data/vol36/36-8/index.html

Of possible interest-

- welfare - MA program fee schedule - procedure code changes
http://www.pabulletin.com/secure/data/vol36/36-8/346.html

- attorneys - discipline - rules of disciplinary enforcement - amendments
http://www.pabulletin.com/secure/data/vol36/36-8/322.html

- court rules - proposed - pleadings, format - comments due March 8th
http://www.pabulletin.com/secure/data/vol36/36-8/323.html

- juvenile court judges' commission - statement of policy - admin. of restitution funds
http://www.pabulletin.com/secure/data/vol36/36-8/329.html

- revenue - mystery multiplier bingo instant lottery game
http://www.pabulletin.com/secure/data/vol36/36-8/348.html

custody - international - Hague Convention

In re Application of Adan - Third Circuit - Febrary 14, 2006

http://www.ca3.uscourts.gov/opinarch/053045p.pdf

District Court ordered return of parties' daughter to Argentinian father, whom appellant-mother had accused of abusing her and daughter. The 3d Circuit ordered a stay of the return order and remanded the case back to the district court -- which it said had created a "woefully incomplete" record -- for detailed fact-finding about the abuse, the ability of Argentinian authorities to protect the child, etc.

See also, Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005 http://www.ca3.uscourts.gov/opinarch/043228p.pdf

Donald Marritz
MidPenn Legal Services

Class Action Notice Landscaping H-2B Case

To: Advocates for Workers

The United States District Court for the Eastern District of Pennsylvania nationwide FLSA opt-in class action notice on behalf of H-2B workers against The Brickman Group, Ltd. is available at the following web location:
http://friendsfw.org/H-2B/Brickman/Class_Notice.pdf

The consent form must be returned prior to July 15, 2006. A copy of the consent form is available for printing at:
http://friendsfw.org/H-2B/Brickman/Brickman_Consent.pdf

Brickman is one of the largest employer's of H-2B landscaping workers. The class includes more than 2,000 persons from Mexico and more than 100 persons from Guatemala. The lawsuit is based upon the continuing failure to comply with Arriaga, et al. v. Florida Pacific Farms, LLC, et al., 305 F.3d 1228 (11th Cir. 2002)

The Defendant's U.S. operations where in numerous different status. Addresses supplied as last known US addresses for foreign H-2B workers include persons in the following states (in declining numbers of persons for 2005) : MD; MI; PA; IN; MO; OH; NJ; VA; NY; CO; TX; CT; FL; DE; TN; IL; CA; MA; NC

Interested persons should contact Friends of Farmworkers staff attorney Manuel Boigues, mboigues@friendsfw.org, telephone (215) 733-0878, ext. 130.

Co-counsel include:

Edward Tuddenham
and
Rachel Micah-Jones
Centro de los Derechos del Migrante
Calle Víctor Rosales #164
Col. Centro, Zacatecas, Zac., Méx.
C.P. 98000
Tel: 011 (52) 492 925 2510
Fax: 011 (52) 492 925 2511
Free call from Mexico 01-800-59-01-773
Free call within the US: 1 - (800) 401-5901


From: Art Read, Friends of Farmworkers

contracts - oral settlement agreement - enforceability

Krebs v. United Refining Co. - Superior Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/Superior/out/a21034_05.pdf

An oral settlement agreement can be enforceable, even where the parties cannot agree about reducing it to writing. However, the claim to enforce was denied in this case, because there was no agreement as to essential terms. The nature and extent of mutual obligations were not certain, and there was no agreement about material and necessary details of the parties' alleged bargain. A trial court cannot fill in missing terms and enforce an agreement of its own devising.

Donald Marritz
MidPenn Legal Services

UC - voluntary quit - leaving the work site

Iaconelli v. UCBR - Commonwealth Court - February 16, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1443CD05_2-16-06.pdf

Claimant was held to have quit her job when she left the work site and did not thereafter try to return to contact the employer. She "did not take any steps to preserve her employment relationship."

"An employee merely leaving the work premises is not enough to determine intent to voluntarily terminate her employment….A claimant must have a conscious intention to terminate her employment….An employee who leaves her employment w/o informing her employer when or if she is planning to return may be held to have voluntarily quit….However, the majority of these cases allow for a reasonable period of time in which an employee has the opportunity to manifest an intent to quit and the employer has the opportunity to contact the employee or vice-[sic]versa."

Donald Marritz
MidPenn Legal Services

UC - findings - complete/specific

Central Dauphin School District v. UCBR - Commonwealth Court - February 15, 2006

http://www.courts.state.pa.us/OpPosting/CWealth/out/1453CD05_2-15-06.pdf

This is a voluntary quit case in which a teacher left her job because of serious student discipline problems. The court remanded the case back to the UCBR for further findings of fact on a) Claimant's credibility and b) whether the employer provided her "appropriate and sufficient support" in resolving the student discipline problems

The court said that the student behavior, if it took place, "would certainly create circumstances that produced real and substantial pressure to terminate employment… if the facts are found as outlined in the record. However, without specific fact finding we can not [sic] exercise proper appellate review." (emphasis added)

The Board "never ruled on the credibility of Claimant vis-a-vis the alleged conduct" outlined in her testimony or whether the employer provided her "appropriate and sufficient support" in resolving the problem.

Donald Marritz
MidPenn Legal Services