Monday, September 29, 2008

ALJ Hoppenfeld

Administrative Law Judge (the “ALJ”) Marilyn Hoppenfeld is an ALJ who dislikes Social Security Disability (“SSD”) applications that are based on fibromyalgia. On August 5, 2008, I appealed ALJ Hoppenfeld’s denial of my client’s SSD application. The Appeals Council, In a tacit indictment of ALJ Hoppenfeld’s grossly defective decision, rejected it in less than two months. Two years is a typical wait time for a decision from the Appeals Council.

The reason for the rapid reversal is two fold. I did not wait to receive copies of the hearing exhibits or a tape of the hearing, which usually takes months or even a year. Second, knowing ALJ Hoppenfeld’s propensity for denying fibromyagia claims, which is detailed in reported case law reversing her adverse fibromyalgia decisions, I made sure to create a well documented medical record. I submitted medical reports from the claimant’s rheumatologists, internist, physical medicine and rehabilitation specialists, and podiatrist. Not surprisingly, ALJ Hoppenfeld failed to state the basis for rejecting the opinions of the claimant’s treating physicians.

ALJ Hoppenfeld had a vocational expert (“VE”) appear at the hearing. On cross examination, I got the VE to testify that, in accordance with the reports of the treating doctors, there were few, if any, occupations that the claimant could perform on a sustained basis. Incredibly, while Hoppendfeld conceded that fact, she denied the case anyway. The Hoppenfeld decision was so obviously defective that the Appeals Council apparently saw the need to reject it with all due haste.


After securing Social Security Disability (“SSD”) and Federal Employee Retirement System (“FERS”) benefits for a client a couple of years ago, he asked me to represent his older child who had turned 18 years of age in connection with a claim for adult disability child (“ADC”) benefits. The client also had a younger child under 18 years of age who was still receiving child’s benefits.

Initially, the client thought that it might not be worthwhile applying for ADC because he would still receive the maximum family benefit between the SSD and child’s benefits. However, I explained to the client why, even if there were no monthly ADC benefits, it would still make sense for him to file for ADC for his older child.

Along with the potential for a monthly ADC benefit, after two years, the adult disabled child can begin receiving Medicare coverage. Anyone pricing health insurance premiums will realize that the approximately $100 a month cost for Medicare is well worth the trouble in applying for ADC.

Monday, September 15, 2008


Disability benefits adjudicators are averse to approving claims based upon fibromyalgia. Fibromyalgia claims are usually denied for allegedly lacking objective evidence. However, I represent a 32 year old who had worked at odd jobs until 1993, whose fibromyalgia claim was denied on the grounds that it was not severe.

The claimant retained me after an administrative law judge (“ALJ”) denied her third application claim for Social Security Disability (“SSD”) benefits. I persuaded the Appeals Council to remand the case for another hearing, and I made a motion that reopened the claimant’s prior applications. Today I received a fully favorable decision that found she became disabled because of her fibromyalgia as of 1991.

After the remand, I subpoenaed medical records that showed the claimant had been diagnosed and treated for fibromyalgia as of 1991. However, the ALJ had to be convinced that the claimant’s fibromyalgia was severe enough to prevent her from being able to do even sedentary work all the way back to 1991.

To ensure that there was no mistaking the severity of the claimant’s fibromyalgia, I submitted reports from three treating specialists. Based upon their review of the medical records, each specialist specified a retrospective onset date that predated their treatment.

The first doctor was the rheumatologist. The rheumatologist is important because the accepted objective evidence for fibromyalgia is the criteria from the American College of Rheumatology. The second doctor was the internist. ALJ’s usually overlook internists because they are considered more of a generalist. However, their opinions are particularly important when, as here, they have been treating a relatively long time. The third doctor was the neurologist. Her opinion corroborated the other two opinions. The new reports made it easy for the ALJ to conclude that the medical evidence now showed she could not work.

Thursday, September 11, 2008

Appeals Council Remand

If an Administrative Law Judge (“ALJ”) denies your case, you can request Appeals Council review in 60 days by completing and submitting form HA-520. You can submit new evidence, and explain the reasons why the ALJ erred. The Appeals Council can approve benefits, which is rare, decide not to review your appeal, or send your claim back to the ALJ for another hearing. What should you do if your claim is remanded to the ALJ?

I received two Appeals Council remands this week. While the factual circumstances and legal issues were very different, in each case, the Appeals Council recommended that a Vocational Expert (“VE”) testify. orders Most Appeals Council remand orders direct the ALJ either to reconsider the same evidence, or to obtain new evidence. Regardless of what the remand order actually states, you should always submit additional evidence. I am advising the claimants to retain their own VE so they can provide reports to their ALJs.

I advise claimants to use VEs who testify for Social Security as this will expedite the appeal process. A VE report can be expensive, but is normally costs less than the amount of a month’s estimated Social Security Disability benefits. Additionally, retaining a VE prevents an ALJ who is predisposed to deny a claim from cherry picking a pet VE whom the ALJ knows will testify adversely.