Wednesday, January 26, 2011

Does ALJ Strauss Try To Get Reversed?

Administrative Law Judge ("ALJ") Hazel Strauss has been deciding Social Security Disability ("SSD") cases for over a decade. In most SSD cases, the ALJ has to apply the Treating Physician Rule ("TPR"). You would think that after thousands of hearings ALJ Strauss would have learned how to apply the TPR.

I asked the Appeals Council to review a Strauss SSD denial on November 14, 2009. I argued that ALJ Strauss has a practice and pattern of denying SSD claims that she knows should be approved, which I supported by citing decisions from federal district court judges reversing Strauss' failure to apply the TPR correctly.

About a year ago, on February 1, 2010, I had to supplement my appeal because District Court Judge Dearie had just issued Robinson v. Astrue, 2009 WL 4722256 (E.D.N.Y. Dec. 9, 2009), which rejected Strauss’ decision for some of the same reasons set forth in my comments to the Appeals Council, including the failure to apply the TPR correctly. Since that time, I have had to supplement my comments five more times because district court judges keep reversing Strauss.

On February 13, 2010, I supplemented the appeal because District Court Judge Gleeson has just issued Primiani v. Astrue, 2010 WL 474642 (E.D.N.Y. Feb. 5, 2010), which was the latest federal court case reversing a Strauss decision. As usual, in denying SSD benefits in Primiani, Strauss intentionally employed the same tactics that she had to know violated the Social Security rules and regulations.

On July 2, 2010, I supplemented my client's appeal a third time because Judge Dearie rejected another Strauss decision in LoRusso v. Astrue, 2010 WL 1292300 (E.D.N.Y. Mar. 31, 2010), for, yet again, improperly giving greater weight to the opinion Social Security’s one time examining consulting doctor and rejecting the opinion of the treating physician.

On November 6, 2010, I supplemented the claimant’s appeal for the fourth time because Pena v. Comm. of Soc. Sec., 2010 WL 4340449 (E.D.N.Y. Oct. 22, 2010), rejected Strauss’ decision for her failure to give controlling weight to the opinion the treating physician. District Court Judge Nicholas Garaufis stated that Strauss improperly rejected a treating physician's opinion based on "internal conflicts in that physician's clinical findings.” Judge Garaufis then said Strauss compounded her error by failing to apply the rules for weighing opinions when a treating doctor’s opinion is not given controlling weight.

On December 25, 2010, I supplemented the claimant’s appeal for the fifth time because Martinez v. Astrue, 2010 WL 5126224 (E.D.N.Y. Dec. 9, 2010), rejected Strauss’ decision again. The Court held that Strauss’ RFC determination “was not based upon a medical assessment of plaintiff's physical limitations. Instead, the ALJ based her determination on her own evaluation of the medical findings in the record, committing legal error.”

The onslaught of transparently wrong decisions from ALJ Strauss has continued unabated. Today, I had to supplement the appeal for the sixth time as federal courts reversed two more Strauss decisions for the usual reasons. In Patel v. Astrue, 2010 WL 5125986 at *6 (E.D.N.Y. Dec. 10. 2010), Judge Gleeson ruled that Strauss, as usual, had failed to comply with the TPR despite evidence that “emphatically and consistently” supported disability. Judge Gleeson criticized Strauss’ “cursory” and “insufficient” analysis. Similarly, in Canton v. Astrue, 2010 WL 5391184 (E.D.N.Y. Dec. 22, 2010), Judge Garaufis also ruled that Strauss utterly failed to apply the TPR, and also failed to assess the claimant’s credibility properly.

It seems that every time a federal district court judge has to review a decision by Strauss it is rejected for failing to follow the TPR. How is it possible that after all these years and after thousands of hearings ALJ Strauss has failed to learn how to follow the TPR? The latest ALJ disposition data stated that Strauss approved 3 cases and denied 34 cases, while the average approval rate rate for ALJs is around 60%. That disposition data indicates that there are many more federal courts reversals of Strauss decisions to come.

Thursday, January 13, 2011

ALJ Fier Unfit To Rehear Case

According to data from the Social Security Administration (the "SSA"), the allowance rate in 2009 for disability decisions by Administrative Law Judges ("ALJ's") was 63%, or almost two out of every three cases. Many of the ALJs at the Queens, New York hearing office are known for being anti-claimant because of their low allowance rates. One of those ALJ's is Seymour Fier.

The most recent data from the SSA covered the time period from September 25, 2010 through November 26, 2010. During that time period, ALJ Fier denied thirty (30) cases and approved full benefits in only six (6) cases. Statistics show that ALJ Fier's allowance rate is way below normal.

Statistics are not the only source of evidence revealing ALJ Fier's inability to evaluate disability cases objectively. Federal district judges have also issued decisions indicating that ALJ Fier is not fit to review cases fairly. The latest reported decision came from Judge Nicholas Garaufis in
McDowell v. Social Security, 2010 WL 5026745 (E.D.N.Y. Dec. 3, 2010).

Judge Garaufis stated that ALJ Fier "did not devote even a single sentence of analysis to" his finding that the claimant did not meet a "listing." Similarly, Judge Garaufis lamented that ALJ Fier devoted only "a single, conclusory pen-stroke without providing even a modicum of analysis or a token recitation of a single fact," for his conclusion that the claimant lacked credibility. In light of ALJ Fier's obvious inability to review the plaintiff's claim fairly, Judge Garaufis not only reversed ALJ Fier's decision, but also ordered the SSA to reassign the claim to a different ALJ.