Thursday, May 21, 2009

ALJ Hoppenfeld Must Be Barred From FMS Cases

I have asked the Regional Chief Administrative Law Judge (RCALJ”) to prohibit ALJ Hoppenfeld from hearing any case where the claimant’s inability to work is due to fibromyalgia (“FMS”). I would encourage others to write the RCALJ too.

At my client’s first hearing, ALJ Hoppenfeld saw no need for a medical expert (“ME”) to testify. The only evidence that arguably contradicted the disability opinions of the claimant’s rheumatologist, pain management specialist, internist, podiatrist and nurse practitioner was the report of Kautilya Puri, a consultative examiner (“CE). Therefore, I requested that CE Puri be subpoenaed for cross-examination, but ALJ Hoppenfeld claimed the subpoena was not issued due to “office error”.

During the hearing I advised ALJ Hoppenfeld that CE Puri was not board certified. When ALJ Hoppenfeld expressed surprise, I offered to submit written confirmation that CE Puri lacked board certification, but ALJ Hoppenfeld said it was not necessary. I advised ALJ Hoppenfeld in writing that the American Board of Medical Specialties (“ABMS”) confirmed that CE Puri is not a board certified internist. In fact, I advised the ALJ the ABMS stated that CE Puri is not board certified in any field of medicine. I wrote ALJ Hoppenfeld that she could confirm CE Puri’s lack of certification for herself by calling the ABMS at (847) 491-9091, or by checking the ABMS website ALJ Hoppenfeld never took any step to verify CE Puri’s certification status.

During the first hearing, ALJ Hoppenfeld indicated that she was unsure if she could accept the opinions of the treating specialists because she needed to see if medical tests supported them. In Brunson v. Barnhart, 2002 WL 393078 (E.D.N.Y. Mar. 14, 2002) the court explained in detail why ALJ Hoppenfeld is not permitted to reject a treating doctor’s opinion about the disabling effects of FMS for lack of diagnostic testing. Nonetheless, relying on CE Puri’s report, and ignoring Brunson, ALJ Hoppenfeld denied the claimant’s application.

Rather than the typical two year wait, the Appeals Council rejected ALJ Hoppenfeld’s decision in only two months. The Appeals Council suggested a VE at the new hearing, but saw no need for an ME. Nonetheless, ALJ Hoppenfeld insisted that, not one, but two experts testify, a psychiatrist and a neurologist. In Tempesta v. Astrue, 2009 WL 211362 (E.D.N.Y. Jan 28, 2009), the court reversed ALJ Hoppenfeld for refusing to give controlling weight to treating physicians by effectively requiring objective evidence beyond the clinical findings necessary for a diagnosis of FMS under established medical guidelines of the American College of Rheumatology 1990 Classification. Thus, Hoppenfeld knew that rheumatologists, not psychiatrists or neurologists, were the appropriate specialist for evaluating FMS. I wrote ALJ Hoppenfeld that her doing so showed that she intended to disregard the treating physician rule just as she had done in Kearney v. Astrue, 2008 WL 270525 (E.D.N.Y. July 11, 2008), where the court called ALJ Hoppenfeld’s failure to follow the treating physician rule “baffling,” and added that “for reasons defying comprehension, [you] chose to repeat the same error” after he previously remanded the case to her.

Since the only evidence that arguably contradicted the reports of the treating doctors was the CE Puri report, I again asked Hoppenfeld to issue a subpoena so I could cross-examine CE Puri. To avoid another “office error,” I submitted my subpoena request by fax and ERE with confirmations. Yet, once again, Hoppenfeld failed to explain her failure to issue the subpoena.

At last week’s hearing, even though I had made it clear the claimant is not asserting disability due to a mental disorder, ALJ Hoppenfeld repeatedly tried to get the claimant to say that she had a history of abuse or mental disorder, which the claimant refused to do. ALJ Hoppenfeld then had ME Winkler testify, who out of the blue asserted that FMS is really a manifestation of people with a history of mental illness, and then said that the psychiatrist would discuss that further. Incredibly, ALJ Hoppenfeld refused to allow me to cross examine ME Winkler regarding his testimony, and terminated the hearing. In other words, since Hoppenfeld knew that the medical evidence showed the claimant’s FMS was disabling, she tried to argue it was not FMS, but a mental disorder.

Because the Queens ALJs have a history of conveniently losing hearing recording when they don’t like the testimony, I asked the Queens ODAR for a copy of the hearing immediately after it was terminated. I was told a copy would be mailed to me the following day. I called the Queens ODAR 5 days later, but was told I never requested a copy, so I then arranged to pick it up that day. However, later that day, I was told the person who makes the hearing recordings was out. Then the next day I was told that for some inexplicable reason the hearing was not recorded. The hearing tape failure was no accident.

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