Case Number: BS158634 Hearing Date: May 24, 2018 Dept: 85

Vernalea Panga v. Board of Retirement of the Los Angeles County Employees Retirement Association, BS 158634

Tentative decision on motion for determination of onset date of disability benefits: denied

Petitioner Vernalea Panga (“Panga”) moves the court for an order determining that May 10, 2004 is the date of onset for her disability benefits.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioner Panga commenced this proceeding on November 2, 2015. The Petition alleges in pertinent part as follows.

On October 23, 2000, Panga suffered a serious back injury in the course and scope of her employment with the County of Los Angeles (“County”), Department of Public Social Services (“DPSS”). As a result of that injury, Panga became permanently incapacitated from a substantial portion of her duties as a Social Worker.

On February 23, 2010, Panga filed an application for disability retirement. On October 5, 2011, Respondent Board of Los Angeles County Employees Retirement Association (“LACERA”) denied Panga’s application. Panga timely appealed that denial and a hearing was held on February 10, 2015 before a Referee appointed by LACERA for that purpose. The Referee issued a Proposed Finding of Fact and Recommended Decision upholding the denial of benefits.

On August 5, 2015, LACERA again denied Panga’s application for disability retirement. A Notice of Board Action was mailed to Panga and her counsel on August 10, 2015.

LACERA’s decision denying disability retirement benefits to Panga is contrary to the weight of the evidence. Panga is unable to perform a light duty assignment for DPSS on a part-time or full-time permanent basis. DPSS is unable to accommodate Panga on a full-time permanent basis. Even if DPSS could accommodate Panga on a part-time basis, she would still be entitled to disability retirement benefits. Panga’s incapacity is a result of an injury suffered in the course and scope of her employment with DPSS and such injury contributed substantially to that incapacity. Panga has been so incapacitated since she discontinued full-time DPSS service or, in the alternative, since she discontinued her service with DPSS.

2. Course of Proceedings

On July 7, 2016, the court issued its tentative opinion granting Panga’s petition for writ of mandate. The court found that the weight of the evidence did not support the Referee’s determination that DPSS was able to accommodate Panga’s work restrictions. The court also addressed the issue of disability onset date. Relying principally on Puckett v. Orange County Bd. of Retirement, (1988) 201 Cal.App.3d 1075, the court noted that Panga should not be treated unfavorably because she unsuccessfully attempted to return to work in a light duty assignment in 2010 and 2011. The court found that compensation for her limited, part-time work was not “regular compensation” under Government Code section 31460. Instead, the court concluded that Panga last received “regular compensation” on May 30, 2004 and that she was thus entitled to service-connected disability retirement benefits from that date onward. The court remarked: “LACERA’s argument is, ‘Look, she was getting paid part-time in 2010 so that should be the date of onset.’ But the case law indicates that she should not be punished for trying to come back to work. For purposes of disability, she should not be punished. And I completely agree with that.” Shaffman Decl. Ex. 1, p.6.

LACERA’s counsel raised issues with the actual onset disability date, arguing, inter alia, that the record lacked sufficient information to verify its accuracy. Shaffman Decl. Ex. 1, pp. 7-11. The court agreed and withdrew its discussion and determination of Panga’s disability onset date. The court provided the following rationale: “So there are many facts here that I don’t know the answer to, nor do I know it’s in her interest. I will say one thing, I do not believe she should be punished for trying to come back to work and failed. That’s the sort of overarching principle here, but where do we go from that principle to the details, I don’t have enough information.” Shaffman Decl. Ex. 1, pp. 11-12.

The court adopted its tentative as orally modified, and remanded the matter for LACERA to make the onset disability date determination. Shaffman Decl. Ex. 1, p.13. The court indicated that Panga could file a motion to compel compliance with the writ should Panga disagree with LACERA’s onset disability date determination.

B. Governing Law

The County Employees Retirement Law (“CERL”) (Govt. Code §31450 et seq.)[1] was enacted to recognize a public obligation to county employees who become incapacitated by age or long service in public employment and its accompanying physical disabilities, as well as to provide a means by which employees who become incapacitated may be replaced by more capable employees without inflicting hardship on the employee removed. §31451.

Section 31720 provides for disability retirement of county employees as follows: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: (a) The member’s incapacity is a result of injury or disease arising out of and in the course of the member’s employment, and such employment contributes substantially to such incapacity, or (b) The member has completed five years of service,…” See Pearl v. Workers’ Compensation Appeals Bd., (“Pearl”) (2001) 26 Cal.4th 189, 193. For purposes of disability retirement, case law defines incapacity as “the substantial inability of the applicant to perform his usual duties.” Hosford v. Board of Administration of Public Employees Retirement System, (1978) 77 Cal.App.3d 85, 860 (quoting Mansperger v. Public Employees’ Retirement System, (1970) 6 Cal.App.3d 873, 876). Disability retirement benefits are free from federal income taxes. Pearl, supra, 26 Cal.4th at 193-94 (citing 26 U.S.C. §104(a)(1)).

Permanent incapacity boils down to two issues: (1) whether the applicant is physically or mentally incapacitated by reason of injury or sickness, and (2) if so, whether the incapacity prevents the applicant from performing the duties to which he might be assigned. See Winn v. Board of Pension Commissioners, (1983) 149 Cal.App.3d 532, 539. Because of well recognized public policy favoring the employment and utilization of physically handicapped persons, if a person is not disabled to a degree which prevents him from serving in any position in a department or agency, he should not be retired with payment of a disability pension. Id. at 540; Craver v. City of Los Angeles, (1974) 42 Cal.App.3d 76, 80.

Where there are permanent light duty assignments in a department, a person who is incapacitated should not be retired if he can perform duties in a given permanent assignment within his department. Barber v. Retirement Board, (1971) 18 Cal.App.3d 273, 278. He need not be able to perform any and all duties performed by persons in his job category. Public policy supports employment and utilization of the handicapped. If a person can be employed in such an assignment, he should not be retired with payment of a disability retirement pension. Petrillo v. BART Dist., (1988) 197 Cal.App.3d 798, 811, (citing Craver v. City of Los Angeles, (1974) 42 Cal.App.3d 76, 79-80).

A person entitled to disability retirement also may be eligible for a service-connected disability retirement. For an injury to be considered service-connected, section 31720 requires that the injury arise out of and in the course of employment: “Any member permanently incapacitated for the performance of duty shall be retired for disability regardless of age if, and only if: (a) His incapacity is a result of injury or disease arising out of and in the course of his employment and such employment contributes substantially to such incapacity, (b) The member has completed five years of service, and (c) The member has not waived retirement in respect to the particular incapacity. The elements “arise out of” and “in the course of” employment are separate elements, and both must be satisfied in order for a job to be considered the legal cause of the injury.

Section 31724 addresses the effective date of disability retirement. Section 31724 provides:

“If the proof received, including any medical examination, shows to the satisfaction of the board that the member is permanently incapacitated physically or mentally for the performance of his duties in the service, it shall retire him effective on the expiration date of any leave of absence with compensation to which he shall become entitled under the provisions of Division 4 (commencing with Section 3201) of the Labor Code or effective on the occasion of the member’s consent to retirement prior to the expiration of such leave of absence with compensation. His disability retirement allowance shall be effective as of the date such application is filed with the board, but not earlier than the day following the last day for which he received regular compensation. Notwithstanding any other provision of this article, the retirement of a member who has been granted or is entitled to sick leave shall not become effective until the expiration of such sick leave with compensation unless the member consents to his retirement at an earlier date.”

When it has been demonstrated to the satisfaction of the board that the filing of the member’s application was delayed by administrative oversight or by inability to ascertain the permanency of the member’s incapacity until after the date following the day for which the member last received regular compensation, such date will be deemed to be the date the application was filed.” (Emphasis added).

Pension statutes must be liberally construed and applied so that the policy established thereby is accorded proper recognition. Dillard v. City of Los Angeles, (1942) 20 Cal.2d 559, 602.

C. Statement of Facts

1. Background

Petitioner Panga began her career with the County on November 12, 1991. Shaffman Decl. Ex. 3, p.30. In 1995, she was promoted to a social worker position with DPSS. Id. Panga’s duties as a social worker included evaluating the needs of aged, blind, and disabled clients and helping them use In-Home Supportive Services (“IHSS”) so that they could remain safely in or return to their own homes. Id. After suffering a work-related back injury, Panga stopped working on May 10, 2004 in order to receive treatment. Id. She received vacation pay and sick leave until October 15, 2004. Id.

Panga received no earnings from her employer from November 12, 2004 to April 12, 2007. Shaffman Decl. Ex. 3, p.31. On April 12, 2007, Panga received $2,119.69 of vacation time in lieu of working and on May 14, 2007, $1,427.76 of vacation time in lieu of working. Id. Thereafter, Panga received no earnings from her employer from June 14, 2007 to March 12, 2010. Id.

On February 23, 2010, Panga filed a disability retirement application. Shaffman Decl. Ex. 3, p.31. Panga checked a box on her application indicating that she was willing to accept another position with the County which would not result in a loss of income to her and which she would be able to perform. Id. She did not check the box requested a service-connected salary supplement under section 31725.65. She did not check the box requested a service-connected salary supplement under section 31725.65. Id. She did check a box requesting disability effective date earlier than the date of her application. Id.

On the same date, Panga returned to work and was accommodated with a reduced work schedule of five hours per day through February 17, 2011. Shaffman Decl. Ex. 3, p.31. She performed social worker duties as a Social Security Supplemental Security Income Advocate. Id. These duties included interacting with public and private service agencies on behalf of clients, assisting clients with completing the application processes, referring clients to legal counsel, and making other referrals as needed. Id.

From February 18 through December 31, 2011, Panga was on a continuous leave of absence. Shaffman Decl. Ex. 3, p.31. From July 6 to December 31, 2011, Panga received no pay. Shaffman Decl. Ex. 3, p.32.

2. The Decision on Remand

LACERA determined that Panga’s last day of regular compensation was December 6, 2011. Shaffman Decl. Ex. 3, pp. 66, 68. The disability date was based on the salary paid to Panga by DPSS as social worker from July 2010 to July 5, 2011. Shaffman Decl. Ex. 3, pp. 32, 69.

On December 30, 2016, Panga appealed LACERA’s decision asserting that the proper onset disability date is May 30, 2014, her last day of full-time work. Shaffman Decl. Ex. 2, p.21.

On March 6, 2017, LACERA denied Panga’s appeal and affirmed the July 6, 2011 onset disability date determination. Shaffman Decl. Ex. 3, p.29.

On April 11, 2017, Panga issued a second-level appeal and this appeal also was denied. Shaffman Decl. Exs. 4-5.

D. Analysis

Petitioner Panga moves the court for an order determining that the date of onset of her disability benefits is May 10, 2004.

1. Regular Compensation

The statute at issue, section 31724, states in pertinent part:

“His disability retirement allowance shall be effective as of the date such application is filed with the board, but not earlier than the day following the last day for which he received regular compensation. Notwithstanding any other provision of this article, the retirement of a member who has been granted or is entitled to sick leave shall not become effective until the expiration of such sick leave with compensation unless the member consents to his retirement at an earlier date.”

The term “regular compensation” as used in section 31724 is not statutorily defined. However, several cases have addressed it.

a. Puckett

In Puckett v. Orange County Bd. of Retirement, (“Puckett”) (1988) 201 Cal.App.3d 1075, 1078, the county employed Puckett as a fire apparatus engineer. Id. at 1078. Puckett developed psychiatric problems and applied for disability retirement in April 1983. Id. While his disability retirement application was pending, Puckett was reassigned to a lower-paying position as a mechanic’s helper. Id. He continued to receive compensation as a fire apparatus engineer until November 11, 1983. Id. On August 12, 1985, LACERA approved Puckett’s disability retirement application and Puckett terminated his work with the county on that same day. Id. LACERA set August 13, 1985 as the effective disability retirement date, the day after Puckett terminated his work. Id. Puckett requested that the disability retirement date be changed to November 11, 1983, the day after his compensation from his fire apparatus job was discontinued. LACERA denied this request. Id.

The court noted that section 31724’s term “regular compensation” is not defined. Id. Puckett argued that the term refers to the employee’s compensation at the position from which he is retiring — viz., as a fire apparatus engineer. Id. The Board took the position that “regular compensation” means “regular, ordinary compensation for services rendered as an employee” and that such definition applied to Puckett’s salary as a mechanic’s helper. Id. Thus, the Board contended that Puckett’s salary as a mechanic’s helper was regular compensation. Id.

Applying the principle that pension statutes should be liberally construed in the applicant’s favor, the Puckett court held that the ambiguity must be resolved in Puckett’s favor. Id. at 1079. “To rule otherwise would penalize Puckett for accepting an alternate county job in order to sustain himself during the period his application was pending.” Id. The court also noted that a primary purpose of a pension program is to encourage continued public service. Id. (citation omitted). “If the Board’s position were adopted, county employees would be motivated to terminate their employment immediately upon filing disability applications and seek work in the private sector.” Id. The court further held that Puckett was not entitled to “double-dip”, meaning that he could not collect full disability retirement payments in addition to his compensation as a mechanic’s helper. Id. at 1078. His disability retirement payments would have to be reduced so that for the period in which he worked as a mechanic’s helper he receives a total no greater than the highest salary at his former position. Id.

b. Katosh

In Katosh v. Sonoma County Employees’ Retirement Ass’n (“Katosh”) (2008) 163 Cal.App.4th 56, 64, the appellate court addressed whether sick leave and vacation are included in section 31724’s term “regular compensation.” Katosh worked for the county as a youth supervisor. Id. at 59. She was hired in 1989 and stopped working on June 26, 2000. Id. On March 28, 2001, her county health insurance lapsed. Id. at 59-60. The county offered health insurance benefits to its employees upon retirement only if they have active health insurance at the date of retirement. Id. at 60, n.1. On February 6, 2002, Katosh filed an application for a service-connected disability retirement with the Sonoma County Employees’ Retirement Association (“SCERA”). Id. at 60.

On October 19, 2004, SCERA explained to Katosh that, she had to have active health insurance at the time she retired in order to be eligible to receive health benefits in her disability retirement. Id. at 60. Because Katosh needed health insurance, she returned to the county’s payroll for a two week period beginning around October 12 and ending on October 27, 2004. She then used a combination of sick leave and vacation time to achieve the necessary 40 hours to reactivate her health insurance. Id. at 61. On October 21, 2004, the SCERA Board granted Katosh a service-connected disability retirement and later set Katosh’s retirement effective as of October 28, 2004. Id.

On appeal, Katosh argued that the term “regular compensation” does not include sick leave or vacation pay and that her last day of receiving “regular compensation” was her last day of work, June 26, 2000. Id. at 64. The Katosh court examined the plain meaning of “regular compensation” and concluded that compensation includes cash payment of benefits, and is a subset of the broader term “compensation”. Id. at 65. A dictionary definition of “regular” means steady, uniform, recurring. Id. Both sick leave and vacation are accrued on a regular basis and the employee receives regular wages without the necessity of performing services. Id.

The court noted that the second sentence of section 31724 sets the retirement date allowance as the latter of the date of application or the day after the employee receives “regular compensation.” Id. This provision ensures against double-dipping, the issue addressed in Puckett where a retiree would receive regular compensation at the same time he or she received retirement benefits. Id. The third sentence of section 31724 concerns exhaustion of sick leave and protects the disabled employee from being retired before having the opportunity to receive wages for accrued sick leave. Not all counties make a lump sum payment of sick leave upon retirement, and the provision permits employee the option of delaying their effective retirement to receive wages for accrued sick leave. Id. at 66, 67-68. The legislative history of the 1972 amendment to section 31724 confirms this purpose. Id. at 67.

The court examined the character of the payments made to Katosh in December 2002 and October 2004. Id. at 71. Katosh’s return to “in pay status” was important because it indicated that she received regular pay instead of a lump sum termination payout. Id. at 71-72. The Katosh court also examined policy considerations and determined that Katosh’s interpretation of the statute — setting the disability retirement effective date on the last date actually worked — would treat employees who tried to return to work after disability less favorably than employees who did not make the attempt. Id. at 75. Relying in part on Puckett, the court found this ramification undesirable and that SCERA’s interpretation did not discourage an employee from attempting to return to work. Id. at 77.

Therefore, the court interpreted the term “regular compensation” in section 31724 to include compensation for sick leave and vacation when taken as time off from work. Id. at 78. The court noted that in this case it was in Katosh’s interests to exclude sick leave from the definition of regular compensation, but there will be other circumstances where such an interpretation would be adverse to the retiring employee. The statutory interpretation should not vary by the particular employee’s circumstance. Id. at 74.

c. Astorga

In Astorga v. Retirement Board of the Santa Barbara County Employees Retirement System (“Astorga”), (2016) 245 Cal.App.4th 386, 387, Astorga applied for retirement disability. To maintain her health insurance pending the decision on her application, Astorga elected to remain on the payroll and receive her accrued sick leave, vacation, and holiday pay in small but regular increments during each pay period between November 18, 2011 and December 8, 2013. Id. at 388-89. The Santa Barbara County Employees Retirement Board (“SBCERB”) approved Astorga’s disability retirement application and set the effective date of her retirement as December 9, 2013, the day after she received her last sick leave, vacation, or holiday payment. Id. at 387-88.

The Astorga court addressed one issue: whether the incremental payments of sick leave, vacation, and holiday pay should be “compressed” to achieve an earlier date of retirement. Id. at 389. The court answered this question in the negative. Id. at 392. The Astorga court remarked that Katosh “confirmed the bright line rule that disability retirement benefits are not available until the day following the day paid leave was last received.” Id. The court added that Astorga knew or should have known the consequences on her disability retirement date of choosing to retain her health benefits. Id. at 391-92.

2. Application

Panga contends that her last day of regular compensation was May 10, 2004, the last day she worked in the position from which she retired due to disability. Mot. at 5.

Katosh, as clarified by Astorga, adopted a bright line rule interpreting section 31724’s term “regular compensation” so that disability retirement benefits are not available where the applicant continues to receive regular compensation in the form of paid leave. This regular compensation may take the form of vacation pay or sick leave.

Panga stopped working on May 10, 2004 in order to receive treatment, and received vacation pay and sick leave until October 15, 2004. Shaffman Decl. Ex. 3, p.31. She did not receive any compensation until she received vacation pay in April and May 2007. Ex. 3, pp. 98, 111. She returned to work part-time from February 18, 2011 through February 17, 2011. Ex. 3 pp. 31-32. From February 17, 2011 through July 5, 2011, she received sick time pay. Ex. 3, pp. 31-32, 80-82. Under the Katosh bright line rule, the last day on which Panga received regular compensation was July 5, 2011. LACERA therefore is correct that her disability retirement cannot become effective until July 6, 2011. Opp. at 11.

Panga relies on Puckett and this court’s decision that she should not be penalized by trying to come back to work by working as a Social Security Supplemental Security Income Advocate on a part-time schedule from February 23, 2010 through February 17, 2011. Mot. at 8-9; Shaffman Decl. Ex. 3, p.31. She argues that Katosh and Astorga are distinguishable as cases in which the claimants were trying to continue their health benefits in retirement by manipulating their vacation and sick pay, and both Katosh and Astorga were on notice that they could lose years of retirement benefits by continuing their sick pay and/or vacation pay. Mot. at 9-10.

These purported distinctions are unavailing. The Katosh court expressly held that the payment of sick leave or vacation is regular compensation for purposes of section 31724 disability retirement onset, and this statutory interpretation must apply whether or not it aids the retirement applicant: “It may be that there are circumstances in which such interpretation is adverse to the interest of the member. The interpretation of the statute should not vary by the particular circumstances of the disability retirement application.” 163 Cal.App.4th at 74.[2] Thus, the claimant’s motive in manipulating the system is irrelevant.

Panga also was on constructive notice that any receipt of sick leave or vacation pay would be treated as regular compensation for purposes of her disability retirement effective date. The Disability Retirement brochure provided to Panga states, “Generally, the disability retirement allowance becomes effective as of the date the application is filed with LACERA, but not earlier than the day following the last day of regular compensation. (Regular compensation includes sick leave and vacation pay when taken by an employee as time off.)” Ex. 5, p.179 (emphasis in original).

Panga argues that she should not be punished for accepting a lower paying County position on a part-time basis. Reply at 5. But the determination of the onset date for Panga’s disability retirement is entirely consistent with the court’s previous decision that Panga should not be punished for trying to come back to work. Shaffman Decl. Ex. 1, p.6. Under Katosh’s interpretation of section 31724, Panga must be deemed to have retired only after she received all vacation and sick pay as part of regular pay instead of a lump sum termination payout. 163 Cal.App.4th at 71-72.[3] This has nothing to do with Panga’s effort to return to work part-time in 2011 and has everything to do with avoiding retiree double dipping.

Panga contends that the mystery checks she received in 2007 were not regular compensation for vacation time and implicitly contends that her sick time pay from February 17, 2011 through July 5, 2011 was accrued as part of her part-time effort for which she should not be punished under Puckett. Reply at 9-10.

This argument also is unavailing. Puckett authorizes an earlier disability retirement onset date only when the employee leaves his previous position and works part-time during the pendency of the retirement application. Puckett does not address the collection of vacation or sick pay before or after leaving the part-time position, but Katosh does. Had Panga not received this sick pay and vacation pay, May 10, 2004 would have been the effective date of her disability retirement despite the fact that she worked part-time in 2010. Conversely, LACERA cannot set a May 10, 2004 retirement date for Panga and then offset the vacation and sick pay she received in 2007 and 2011, respectively.[4] As SCERA argued in Katosh: “[T]here is no authority in [CERL] for a county retirement system to set an early retirement date and then offset the retirement allowance by an amount equal to any compensation received from the county after that date.” 163 Cal.App.4th at 76. Under Katosh, Panga’s disability retirement onset date must be July 6, 2011 as required by section 31724.

Panga then shifts her argument to seek a retroactive supplementary disability allowance under section 31725.6 similar to that imposed in Puckett. She notes that a disabled County employee who returns to work for a part-time work day may be paid for the actual hours worked with the remaining work day paid from accrued sick leave and vacation pay until they are exhausted. Thereafter, employees are entitled to a “sick percentage” of 65% of their wages to supplement their part-time wages while working with a disability. Ex. 6, pp. 198-99. Panga contends that she received no County earnings from May 2004 to February 2010, and she never received full pay in any month when she worked part-time from February 2010 to February 2011. Section 31725.65 allows a returning disabled employee who cannot perform their old duties but can perform other duties to receive a “supplementary disability allowance” pursuant to a re-employment plan. Panga argues that she is entitled to a supplementary disability allowance under section 31725.65 equal to the difference between her actual earnings and her scheduled full pay during this more than one year period. Mot. at 14.

Panga’s argument is not within the scope of the court’s writ, which only required LACERA to grant Panga’s disability retirement application and make a determination of her onset disability date. Shaffman Decl. Ex. 1, p.13. LACERA has done both, and whether Panga is entitled to additional compensation in the form of a supplementary disability allowance under section 31725.65 is not before the court. That issue would have to be raised to the LACERA in the first instance and, if necessary, by judicial review in a separate petition.[5]

E. Conclusion

The motion is denied. The date of onset of Panga’s disability benefits is July 6, 2011.

[1] All further statutory references are to the Government Code unless otherwise stated.

[2] Panga argues that Katosh’s bright line rule is inconsistent with the purpose of section 31274, which is to benefit the employee by allowing him or her to exhaust accrued sick pay and vacation pay where they would receive full wages in lieu of the retirement allowed at a lesser rate. Mot. at 13. Further, Panga argues that she has not actually benefitted from her one year of work in a lower-paying, part-time position. Reply at 7. Perhaps so, but the Katosh court explained that a statutory interpretation cannot vary depending on whether it aids the applicant.

[3] Although the evidence contains no reason why Panga received vacation pay in April and May 2007 and then sick pay from February 17 through July 5, 2011, Panga does not dispute that these funds were received because they had been accrued and constituted part of her regular wages without the necessity of performing services. See Katosh, supra, 163 Cal.App.4th at 65.

[4] Panga has the burden of proof, and she has not shown that the 2007 checks were not for vacation time. In any event, the subsequent 2011 payments were for sick pay.

[5] LACERA argues that section 31725.65(b) requires that the employer consult with the employee to identify a different position compatible with his or her current abilities, and Panga returned to work in the same Social Worker job classification. Section 31725.65’s supplementary disability allowance is not available to her because she worked in the same job classification. Opp. at 14. The fact that Panga returned to work in the same the same job classification is not dispositive because LACERA is confusing a job classification with the terms “work duties” (§31725.659(a)) and “vacant county positions”. §31725(b). There may be many different positions in a job classification with different work duties, and Panga’s duties as a Social Security Supplemental Security Income Advocate clearly differed from those in her previous position. See Reply at 5.