Department's Directive Reversing No-Enforcement Policy Is Not A Reviewable "Standard"
NATIONAL ROOFING CONTRACTORS ASSN. v. UNITED STATES DEPARTMENT OF LABOR (April 7, 2011)
The United States Department of Labor promulgated a regulation in 1994 that required residential construction workers to use guard rails or other fall arrest systems when they were working at certain heights. Because the Department received many comments during the rulemaking period asserting that the requirement could actually impair safety, it included an exception whereby an employer could demonstrate that compliance would create a greater hazard and be relieved from the requirement. The regulation did not satisfy either the construction industry or employee groups. In 1999, the Department issued an advance notice of proposed rulemaking seeking comments on whether the regulation should be amended. At the same time, it issued a directive that, in effect, advised its staff not to enforce the regulation if an employer used slide guards or other named methods -- methods that were not in compliance with the regulation. In 2010, the Department closed the rulemaking without changing the regulation, rescinded its 1999 Directive, and issued a new directive (the "2010 Directive") stating that the 1994 regulation will be enforced as written. The National Roofing Contractors Association, along with others, filed a petition to set aside the 2010 Directive.
In their opinion, Chief Judge Easterbrook and Judges Coffey and Rovner dismissed the petition. The Court noted that it has jurisdiction to review an "occupational safety and health standard" issued by the Department. The Department contends that the 2010 directive is not such a standard and not subject to review. The Court agreed. A reviewable standard is a standard which requires "the adoption or use of one or more practices, means, methods, operations, or processes" to provide a safe place of employment. The 1994 regulation does require certain practices or processes and is a standard subject to review. But no one timely challenged the 1994 regulation. Neither the 1999 nor the 2010 Directives changed the regulation's requirements. The 1999 Directive simply announced the parameters of prosecutorial discretion – and the 2010 Directive announced the termination of that discretion. The fact that employers must now meet a standard that they have not had to meet since 1999 does not make it a reviewable standard. The Court also rejected the petitioners' argument that the 2010 Directive was a "standard" because it actually modified the 1994 regulation. The Court found no language in the directive that did that.
Anita Martinez and her five children live in her mother's basement. Martinez suffers from depression, bipolar disorder, and severe arthritis. She is on medication for both her mental and physical complaints. An ALJ denied her claim for disability benefits. Francis Rider is 61 years old, extremely obese, has severe arthritis in her right knee, and suffers from back pain. An ALJ denied her request for disability benefits. Christine Pound is 60 years old and suffers from coronary artery disease, cartoid artery disease, back pain, and restless leg syndrome. But Pound only had Social Security coverage through the end of 2003. At that time, her conditions were under control and she used only mild medication to treat her pain. An ALJ denied her request for disability benefits. Martinez, Rider, and Pound appeal.
Lynn Larson has been suffering from anxiety and depression for years. Her already fragile condition worsened in early 2004 when she was raped and suffered several additional physical injuries. Her psychiatrist continued to describe and adjust dosages of several medications throughout this time. Larson applied for Social Security benefits in June of 2004. Her troubles continued -- she was drinking, she had a "nervous breakdown," the nephew she had been raising was taken from her home, and she was arrested for driving under the influence. Her application for benefits was denied in 2004, and again on reconsideration in 2005. Her psychiatrist submitted a new questionnaire with a diagnosis of "severe, recurrent depression." A hearing was held before an ALJ in 2007. Larson testified about her employment history -- that she quit her part-time job at a gas station because she had to hide in the bathroom, she was fired from her bus driver job after a breakdown, and that she worked two hours a week at a restaurant owned by a friend. A psychologist testified that Larson met the "A criteria" but not the "B criteria." Her psychiatrist testified that Larson met all criteria. The ALJ denied the claim. Larson appeals..jpg)
Minor student C.D. was a kindergarten student when he was diagnosed with 
Kathy Lantz was married to a dentist with whom she filed joint federal tax returns. Unfortunately, she was also married to a dentist who was convicted of Medicare fraud and who the IRS accused of understating their joint tax liability. When she received a notice of tax levy and information from the IRS regarding innocent spouse relief, she allowed her then estranged husband to respond. Although he requested a due process hearing and application for such relief, he died before taking any other action. In 2006, the tax obligation exceeded $1 million. The IRS applied Lantz’ 2005 income tax refund of $3200 to her tax liability. Unemployed and poor, she applied for innocent spouse relief. The IRS rejected her application because she had failed to apply within two years from the notice of intent to levy. The Tax Court invalidated the two-year deadline. The Commissioner appeals.
Theodis Nelms was admitted to the hospital in May 2002. He was diagnosed with several health problems, including pneumonia, respiratory failure and inflammation of the heart. He had open-heart surgery and was released in June. Nelms applied for social security benefits. He listed as his impairments his recovery from surgery, asthma and pneumonia. The Social Security Administration twice denied him benefits. In late 2002 and again in early 2003, Nelms was seen by an agency physician. Each doctor concluded that Nelms could perform light duties. Nelms was granted a hearing on his request in 2005. Nelms did not have a lawyer. The hearing lasted twenty minutes. Nelms listed his impairments in order of severity – heart, back, legs and asthma. He described his conditions and his pain, specifically noting that his asthma strikes when he is exposed to dust, pollen, hot or cold. The ALJ concluded that Nelms was not disabled, concluding that he was able to do light work. He relied on his smooth recovery from surgery, his only sporadic pain, his slight asthma, and his capacity to do light work. The Appeals Council denied review and the district court affirmed. Nelms appeals.
Brian Ketelboeter was a truck driver. He claims that he was injured in 1995, although he continued working until 2003. During those eight years, he complained of several additional injuries and increasing pain. Many physicians examined Ketelboeter over those years. Most tests showed no physical problems, at least none consistent with the degree of pain Ketelboeter claimed to experience. Dr. Dickson began treating Ketelboeter in 2002. Dickson treated his pain with muscle relaxants and therapy. Dickson reported that Ketelboeter’s pain was not consistent with the objective physical findings. Ketelboeter stopped working in June of 2003 and applied for disability in September. A hearing was held in April of 2005. The record contained the medical conclusions of Dickson and a state medical expert who reviewed Ketelboeter’s records. A vocational expert opined that, although Ketelboeter could no longer perform his truck driving job, he could perform other jobs. The vocational expert relied on the testimony of the medical expert in reaching his conclusion. He admitted that Dickson’s testimony would support an opinion that Ketelboeter would not be able to perform any job. The ALJ denied Ketelboeter’s claim. The ALJ granted Ketelboeter a second hearing based on additional testimony from Dickson. Again, a state-agency expert testified. He testified that there was little objective evidence of Ketelboeter’s pain. The vocational expert identified several additional jobs that Ketelboeter could perform. Again, the ALJ denied Ketelboeter’s claim. The ALJ placed more weight on the testimony of non-treating experts than Ketelboeter’s treating physician. He did so because of the lack of objective evidence of pain and Dickson’s own conclusions that Ketelboeter’s reports of pain were not supported by physical findings. Ketelboeter appeals.
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