Another U.S. District Court Judge, Denis Hurley, has rejected the decision of Administrative Law Judge (“ALJ”) David Nisnewitz that denied Social Security Disability benefits. In Day v. Astrue, once again, ALJ Nisnewitz relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though federal court judges have previously told the ALJ that the testimony of an ME “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.
ALJ Nisnewitz knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion, yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over?
The American Heritage Dictionary defines “bias” as a preference that inhibits impartial judgment. Since ALJ Nisnewitz has a history of repeatedly making the same mistakes, it is logical to conclude that his preference for denying disability claims inhibits his impartial judgment.
In my September 29, 2009 blog entry, I wrote, “It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility.” As noted in my recent blog entries, a class action lawsuit was filed this month accusing ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants. As a result of the class action, the Social Security Administration will not be able to evade its responsibility for investigating the bias of the Queens Five.