01A01256
03-05-2003
Deborah A. Davis, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Deborah A. Davis v. Department of Veterans Affairs
01A01256
03-05-03
.
Deborah A. Davis,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A01256
Agency No. 95-0726
DECISION
INTRODUCTION
Deborah A. Davis (complainant) initiated a timely appeal to the
Equal Employment Opportunity Commission (EEOC or Commission) from the
final agency decision (FAD) of the Department of the Veterans Affairs
(agency), concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission hereby accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant was entitled to payment of $5,000.00 in non-pecuniary damages
and $694.97 in administrative costs.
BACKGROUND
Complainant filed a formal complaint on December 21, 1994, alleging that
she had been discriminated against based on race (African American),
color (Black), sex and in reprisal for prior EEO activity when the Acting
Chief of the Social Work Service decided not to upgrade her position to
Social Work Associate after she completed her college degree.
The agency complied with all procedural and regulatory prerequisites,
and on October 6, 1997, an EEOC Administrative Judge (AJ) issued a
Recommended Decision (RD) finding discrimination based on reprisal when
the agency failed to upgrade complainant's Social Work Aid position
to the Associate level. In its FAD, the agency determined that the AJ
erred when she found that complainant's former supervisor (S1) was the
de facto decision maker in the denial of complainant's upgrade and that
S1's feelings concerning complainant's complaints against her colored
her recommendations. The agency asserted that no guarantee existed that
complainant's position would have been upgraded even if the responsible
management official had recommended the upgrade.
Complainant filed an appeal with the Commission, challenging the
agency's finding of no discrimination. In EEOC Appeal No. 01992251
(February 26, 1999), the Commission reversed the agency's final decision.
The Commission further ordered the agency to conduct a supplemental
investigation into the question of whether complainant should be awarded
compensatory damages.
During the supplemental investigation, complainant asserted that she
was entitled to future pecuniary losses of $6,192.00 in counseling
and medication expenses, non pecuniary losses of $40,728.63, and
costs of $1,067.78. Complainant provided a statement from a Licensed
Professional Counselor (LPC) (the Counselor), AMC Center for Wellness,
stating that complainant presented with symptoms of Post Traumatic Stress
Disorder (PTSD), moderate to marked depression, and abnormal anxiety.
The Counselor also explained that complainant had difficulty sleeping,
short-term memory loss, fatigue, irritability, lack of concentration,
sadness, and feelings of worthlessness and hopelessness. The Counselor
further stated that she attributed complainant's condition to the trauma
she experienced at the agency, and maintained that complainant would not
be able to hold employment for two years. Complainant also presented
evidence that she divorced her husband during this period and sent her
youngest daughter to live with her older children.
The agency issued a second FAD on October 26, 1999, finding that
complainant was entitled to $5,000.00 in non-pecuniary damages and $694.97
in administrative costs. The agency observed that complainant did not
seek counseling until more than four years after the discriminatory
event. It noted that, since the event, complainant had resigned from
her position, attended graduate school, obtained a master degree in
social work, applied for many positions at the agency, and worked as
a substitute teacher. The agency found that many intervening factors,
particularly complainant's lack of employment, affected complainant prior
to her attending counseling. The agency determined that it was highly
unlikely that complainant's failure to receive an upgrade of her position
caused her PTSD. The agency also noted that the Counselor attributed
complainant's depression to both her employment at the agency and her
financial situation following her unemployment. The agency found that
the duration of complainant's condition appeared to be approximately
six years.
This appeal followed. On appeal, complainant claims that she is entitled
to past pecuniary losses of $632.85 to include moving expenses, future
pecuniary losses of $39,028 to include counseling, medication, and
living expenses for two years, and non-pecuniary losses of $40,000.
She also claims $1,067.78 in administrative costs. The complainant
argues that the agency incorrectly assigned fifty percent of the expenses
to the discriminatory event. She provides three statements from her
Counselor which explain PTSD in persons denied appropriate compensation
and promotion, as well as other evidence supporting her expenses.
Complainant again states that her severe emotional distress, caused by
the agency's discrimination, has had a catastrophic effect on her life.
She notes that the agency admits in its FAD that complainant's condition
appeared to be approximately six years in duration.
In its response, the agency argues that the Commission should not
consider complainant's newly submitted evidence. It states that, with
only thirty days to respond, a mechanism does not exist for the agency
to investigate and verify the evidence submitted for the first time on
appeal. The agency notes that it conducted a supplemental investigation,
and complainant, through her counsel, had ample opportunity to present
relevant evidence. The agency requests that the Commission decline
to consider the evidence offered by complainant for the first time on
appeal and affirm its FAD.
ANALYSIS AND FINDINGS
Compensatory Damages
A. Legal Standards for an Award of Compensatory Damages
Pursuant to section 102(a) of the Civil Rights Act of 1991, a
complainant who establishes his or her claim of unlawful discrimination
may receive, in addition to equitable remedies, compensatory damages
for past and future pecuniary losses (i.e., out of pocket expenses)
and non-pecuniary losses (e.g., pain and suffering, mental anguish).
42 U.S.C. � 1981a(b)(3). The particulars of what relief may be awarded,
and what proof is necessary to obtain that relief, are set forth in detail
in EEOC Notice No. N 915.002, Compensatory and Punitive Damages Available
Under Section 102 of the Civil Rights Act of 1991 (July 14, 1992).
Briefly stated, the complainant must submit evidence to show that the
agency's discriminatory conduct directly or proximately caused the losses
for which damages are sought. Id. at 11-12, 14; Rivera v. Department of
the Navy, EEOC Appeal No. 01934157 (July 22, 1994). The amount awarded
should reflect the extent to which the agency's discriminatory action
directly or proximately caused harm to the complainant and the extent to
which other factors may have played a part. EEOC Notice No. N 915.002
at 11-12. The amount of non-pecuniary damages should also reflect the
nature and severity of the harm to the complainant, and the duration or
expected duration of the harm. Id. at 14.
In Carle v. Department of the Navy, the Commission explained that
"objective evidence" of non-pecuniary damages could include a
statement by the complainant explaining how he or she was affected
by the discrimination. EEOC Appeal No. 01922369 (January 5, 1993).
Statements from others, including family members, friends, and health
care providers could address the outward manifestations of the impact
of the discrimination on the complainant. Id. The complainant could also
submit documentation of medical or psychiatric treatment related to the
effects of the discrimination. Id.
The Commission applies the principle that "a tortfeasor takes its
victims as it finds them." Wallis v. United States Postal Service, EEOC
Appeal No. 01950510 (November 13, 1995) (quoting Williamson v. Handy
Button Machine Co., 817 F.2d 1290, 1295 (7th Cir. 1987)). However, the
Commission also applies two exceptions to this general rule. First, when
a complainant has a pre-existing condition, the agency is liable only for
the additional harm or aggravation caused by the discrimination. Second,
if the complainant's pre-existing condition inevitably would have
worsened, the agency is entitled to a reduction in damages reflecting
the extent to which the condition would have worsened even absent the
discrimination; the burden of proof is on the agency to establish
the extent of this entitlement. Wallis, EEOC Appeal No. 01950510
(citing Maurer v. United States, 668 F.2d 98 (2d Cir. 1981)); Finlay
v. United States Postal Service, EEOC Appeal No. 01942985 (April 29,
1997). The Commission notes, therefore, that complainant is entitled
to recover damages only for injury, or additional injury, caused by the
discrimination. Terrell v. Department of Housing and Urban Development,
EEOC Appeal No. 01961030 (October 25, 1996); EEOC Notice No. N 915.002
at 12.
B. Nexus Between Alleged Harm and Discrimination
Complainant testified that she �suffered mental anguish and disappointment
in the system itself.� She also stated that she had to send her youngest
daughter to live with her older children due to her inability to support
her daughter financially. She explained that she divorced her husband,
who was also a government employee, and stated that she believed that
the discrimination had an impact on her marriage, as both she and
her husband feared retaliation. Complainant asserted that she applied
to numerous positions with the agency, but she had not been rehired.
She further testified that she had been diagnosed with PTSD. The record
reflects that complainant worked as a substitute teacher after she left
agency employment.
Complainant's ex-husband averred that, after they divorced, he maintained
contact with complainant and witnessed the undue stress the discrimination
in this matter caused complainant. He stated that she expressed her
feeling that the agency �had let her down and had no concerns about
her twenty plus years of employment� with the government. He further
stated that, during the period she was still employed by the agency,
she told him that she felt trapped, used, and rejected by the agency.
He explained that, during their marriage, complainant became withdrawn
and their relationship began to waiver because complainant would rarely
communicate with him. He averred that complainant appeared depressed
and changed dramatically from the person he had married nearly two
decades earlier.
Complainant also provided affidavits from her eldest son and her youngest
daughter. Both described complainant's depression and financial strain
after complainant's resignation. Each one also explained the hardships
their family endured because of the �ordeal that [complainant was]
facing� with the agency and the discrimination case.
The record reflects that complainant sought counseling four years after
the discriminatory event.<1> The Counselor diagnosed complainant with
PTSD and Major Depression Recurrent. In evaluations, dated May 31, 1999
and June 24, 1999, the Counselor stated that, after seeing complainant
for several sessions, she determined that complainant �suffered severe
emotional distress as a result of the apparent discrimination she suffered
during the time she was employed with the [agency].� She further
reported that, due to the denial of a promotion, complainant became
depressed, her short term memory was impaired, and she had difficulty
making decisions. The Counselor noted that, following her resignation,
complainant experienced financial hardship and had not obtained a position
where she could use her skills, and she opined that complainant could not
be employed due to her severe symptoms of depression. She asserted that,
in order for complainant to become a productive citizen, complainant would
need continuous psychotherapy and medication management for two years,
as well as financial assistance because the stress of bill payments
and living expenses were part of complainant's overall mental anguish.
She further reported that, depending on complainant's quality of care,
use of medication, and ability to learn to manage stress, complainant's
prognosis is fair to good.
On appeal, complainant includes three followup letters from the Counselor,
two dated January 5, 2000 and one dated January 14, 2000, and a record
of her visits and payment history. In her first January 5, 2000 letter,
the Counselor stated that complainant was deteriorating because she
had not found employment. She further reported that complainant's
medications were increased due to the recurrence and increase of the
depression and PTSD. The second January 5, 2000 letter reiterated the
information provided in the Counselor's June 24, 1999 letter. Finally,
in her January 14, 2000 letter, the Counselor explained the symptoms of
PTSD and the reasons complainant may have developed PTSD in employment.
She cited to Leopold Bellack, M.D., Crises and Special Problems (1994),
to explain that job loss is a frequent threat and traumatic occurrence
in the lives of many people. She stated that, although complainant could
not afford to take the medication and feared discrimination if it became
known that she was on psychotropic medication, complainant still was in
need of the medication. She reported that complainant began suffering
from several physical illnesses, including sinus and lung problems,
gastrointestinal problems, high cholesterol, and nervous stomach, and
that complainant had colon resection surgery, followed by pneumonia,
and additional surgery.<2>
The agency asserts that complainant's additional evidence in support of
her contention that she is entitled to a higher award of compensatory
damages and costs should not be considered. As a general rule, no new
evidence will be considered on appeal unless there is an affirmative
showing that the evidence was not reasonably available prior to or during
the investigation. EEO Management Directive for 29 C.F.R. Part 1614
(as revised, November 9, 1999) (MD-110), at 9-15. See 29 C.F.R. �
1614.404(b). The Commission will address whether complainant has made
an affirmative showing that the evidence was not reasonably available
during the investigation in this and the Calculations of Damages sections.
The Commission finds that complainant has documented, through the
Counselor's May 31, 1999 and June 24, 1999 evaluations and various
affidavits, the mental effects of the agency's discrimination.
The record reflects that, prior to her resignation, complainant became
withdrawn from her family and depressed. The affidavit submitted by
complainant's ex-husband further indicated that a severe strain was
placed on complainant's relationship with him and her children, and that
complainant's enjoyment of life has been diminished. The Counselor's
evaluations reflect that the agency's conduct resulted in complainant
requiring counseling for her major depression, difficulty sleeping,
short-term memory loss, fatigue, irritability, lack of concentration,
sadness, and feelings of worthlessness and hopelessness. We note that
complainant has failed to provide evidence from a medical doctor regarding
her physical illnesses. Based on the objective evidence reviewed above,
we find that complainant proved that she experienced significant emotional
distress which was caused, in part, by the agency's failure to upgrade her
position to Social Work Associate after she completed her college degree.
We note that the evidence reflects that complainant's resignation
from her position at the agency and the financial strain caused by her
unemployment also affected her psychological health. In this respect,
the evaluation from the Counselor reveals that job loss is a frequent
threat and traumatic occurrence in the lives of many people and can result
in PTSD. Since complainant is entitled to recover damages only for
injury caused by the proven discrimination, complainant cannot recover
damages for the PTSD because she failed to prove that the PTSD resulted
from the agency's failure to upgrade her position.
C. Calculation of Damages Payable
1. Past Pecuniary Damages
In Wallis, the Commission held that a complainant is entitled to
recover the full amount of the fees charged for any medical services
she received in connection with the injury caused by the agency's
discriminatory action. EEOC Appeal No. 01950510. Here, complainant
provides a copy of her billing sheet for the counseling she received prior
to the agency's supplemental investigation and requests $632.85 for costs
she incurred moving her household goods from Texas to Alabama. After a
careful review of the record, we find that the billing sheet submitted
by complainant on appeal was reasonably available to her prior to the
supplemental investigation. With respect to complainant's request for
costs incurred moving her household goods from Texas to Alabama, we find
that complainant has failed to prove a nexus between the agency's failure
to promote her and her decision to move. Accordingly, complainant's
request for past pecuniary damages is denied.
2. Future Pecuniary Damages
The Counselor stated in her evaluations that complainant will continue
to need counseling. Specifically, the Counselor reported that, due to
the length and severity of complainant's symptoms, she will require two
years of counseling and psychotropic medication. She further recommends
that complainant not be employed full time for at least two years.
She reports that, in cases of severe depression and PTSD, patients
require adequate time, normally two years, to heal both physically and
emotionally. We note again that the Counselor described complainant's
prognosis as fair to good.
Complainant asserted during the agency's supplemental investigation and
has provided proof on appeal that the fee charged for each counseling
session is $79.00. Complainant also presented evidence that she will need
therapy twice a month in the first year of treatment and once a month in
the second year of treatment. We note that, while complainant submitted
additional evidence from the Counselor, the record reflects that the
Counselor's initial evaluation, dated May 31, 1999, contained sufficient
information for the agency to determine future pecuniary losses.
Furthermore, the additional evidence regarding complainant's ongoing
medical status would not have been available during the investigation.
Therefore, based on the record before us, we find that it is reasonable
for complainant to require a total of 36 sessions of therapy, totaling
$2,844.00.
During the agency's supplemental investigation, complainant estimated
the cost of her medication to be $100.00 per month, and on appeal, she
provides a pharmacist's estimate of $158.19 per month for the medication.
We find, however, that complainant has failed to provide sufficient
evidence to prove that she was taking the medications or intended to
take the medications, as she has not provided receipts for medication
she has taken or a prescription from a medical doctor. For this reason,
complainant's request that the agency pay for her medication is denied.
Complainant requests living expenses in the amount of $32,836.00
because the Counselor recommended that complainant not be employed for
a period of two years. The Commission is not persuaded, however, that
the agency's failure to upgrade complainant's position is the cause for
complainant's inability to find additional employment. We note that
complainant resigned from her position with the agency, and there has
been no finding of a constructive discharge.
Accordingly, the agency is directed to pay complainant the amount of
$2,844.00 for complainant's future medical expenses.
3. Non-Pecuniary Damages
We now turn to the issue of whether the agency's award of $5,000 in
non-pecuniary compensatory damages was adequate. There is no precise
formula for determining the amount of damages for non-pecuniary losses,
except that the award should reflect the nature and severity of the harm
and the duration or expected duration of the harm. Loving v. Department
of the Treasury, EEOC Appeal No. 01955789 (August 29, 1997). It should
likewise be consistent with amounts awarded in similar cases. Hogeland
v. Department of Agriculture, EEOC Appeal No. 01976440 (June 14, 1999).
Complainant requests $40,000 in non-pecuniary damages. She has provided
evidence, through the Counselor's evaluations and various affidavits, of
the effects of the agency's discrimination. Complainant has not made an
affirmative showing that the evidence provided in the Counselor's January
5, 2000 and January 14, 2000 evaluations was not reasonably available to
her during the investigation. We note that the Counselor's evaluations,
dated May 31, 1999 and June 24, 1999, provide sufficient information
upon which the Commission can render a decision as to complainant's
non-pecuniary damages.
Based on the objective evidence reviewed above, we find that complainant
proved that she experienced severe emotional distress which was caused,
in part, by the agency's failure to upgrade her position to Social
Work Associate after she completed her college degree. The Commission
notes that the agency conceded in its FAD that complainant's condition
appeared to be approximately six years in duration. Taking into account
the evidence of non-pecuniary damages submitted by the complainant, the
Commission finds that complainant is entitled to non-pecuniary damages
in the amount of $20,000.00. See Mooney v. United States Department
of Agriculture, EEOC Appeal No. 01974494 (May 24, 2000) ($20,000 in
non-pecuniary damages where complainant suffered from depression and
anxiety and a short period of diagnosed Major Depression, due to the
agency's discrimination); Colwell v. United States Postal Service,
EEOC Appeal No. 01985789 (June 13, 2001) (Commission awarded $20,000.00
in non-pecuniary damages for complainant's depression and emotional
distress, which manifested themselves in crying spells, insomnia,
headaches, anxiety attacks, constant mood swings, and low self esteem,
and for which complainant received psychological treatment; loss of credit
standing and loss of professional standing); Yue Lee Wan v. United States
Postal Service, EEOC Appeal No. 01995204 (July 11, 2001) ($15,000 awarded
where there was loss of marital harmony, emotional distress, depression,
and inability to sleep). Our determination considers the emotional
symptoms described by complainant, her ex-husband, her children, and
the Counselor in her May 31, 1999 and June 24, 1999 evaluations.
Costs
Although the only recoverable costs cited in the regulations are for
reporting fees, expert witnesses, and copying, the Commission has held
that recoverable costs may include reasonable out-of-pocket expenses
incurred during the normal course of representation. See EEO MD-110,
at 7-5. Recoverable expenditures include costs associated with clerical
work, postage, and telephone calls, as well as travel expenses, including
air fare, hotel accommodations, meals, and car rental. To be reimbursed
for incurred costs, the fee applicant must submit adequate documentation
in support of the expenses incurred, e.g., copies of telephone bills
or receipts.
The AJ awarded complainant administrative costs for attending the hearing.
Complainant requests $1,067.78 in costs to include $14.29 for food,
$610.40 for travel, $237.72 for lodging, and $205.37 for postage and
phone calls. The agency awarded complainant $694.97 for food, travel,
postage and phone calls. The agency denied the following costs: one day
of a car rental, one night at a Days Inn, room and board for four days,
gasoline for which complainant provided no receipts, and two days of
parking. The agency denied costs which were attributable to complainant's
extended stay of one day in Texas and which were not proven with receipts.
Complainant contends that the costs disallowed by the agency were
ordinary and necessary. She asserts that she should be reimbursed $43.98
for one day of the car rental, $57.72 for one night at a Days Inn,
and $10.00 for parking. She explains that, by extending her stay in
Texas by one day, she saved $280.00 by taking a less expensive flight.
We find that complainant has shown that her decision to remain in Texas
one more day resulted in an overall savings, and accordingly she should
be compensated $110.70 for these expenses.
In addition, complainant provides new evidence regarding her four day
room and board with a friend. We find, however, that this new evidence
was reasonably available to complainant prior to the supplemental
investigation, and therefore deny this cost. Finally, complainant
contends she is entitled to $48.00 for gasoline, even though she did not
provide receipts for this expense. The Commission finds that this cost
was properly denied by the agency because complainant failed to provide
sufficient supporting documentation. Accordingly, the agency shall pay
complainant an additional $110.70 for costs incurred during the hearing.
CONCLUSION
Accordingly, the agency's decision is MODIFIED and REMANDED for further
processing in accordance with this decision and the ORDER below.
ORDER
The agency is ordered to take the following remedial actions:
1. Within sixty (60) days from the date this decision becomes final,
the agency shall pay complainant:
$2,844.00 for future pecuniary damages;
$20,000 for non-pecuniary compensatory damages; and
$805.67 for administrative costs incurred during the hearing.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of and other benefits due complainant, including
evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__03-05-03________________
Date
1 Complainant asserted that she did not seek
counseling earlier because she could not afford to do so.
2 The Counselor appears to have reviewed complainant's medical evidence
in preparing her evaluation.