Wednesday, September 28, 2011

Federal Court Reassigns Nisnewitz Case

Another U.S. District Court Judge, Doris Irizarry, has issued a decision that rejected the denial of Social Security Disability ("SSD") benefits by Administrative Law Judge ("ALJ") David Nisnewitz.

I represent Leslie Bailey, who is also the lead plaintiff in the class action lawsuit that was filed against five ALJ's from the Queens hearing office, including ALJ Nisnewitz, on the grounds that they are biased against claimants. Judge Irizarry found that ALJ Nisnewitz's contentiousness was inappropriate, and did not advance the ultimate goal of developing the record in a meaningful way. Notably, one of the allegations against ALJ Nisnewitz in the class action is that he "routinely holds hearings that are combative, adversarial,and intimidating for claimants." As a result of ALJ Nisnewitz's conduct, Judge Irizarry ordered that Ms. Bailey's individual case be reassigned to a different ALJ on remand.

Judge Irizarry remanded ALJ Nisnewitz's decision because, once again, he relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though federal court judges have repeatedly told him 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 because it violates the Treating Physician Rule ("TPR"), yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over? According to the attorneys prosecuting the bias class action, ALJ Nisnewitz's habitual failure to comply with the TPR is evidence of his bias against claimants.

Another tactic that ALJ Nisnewitz employs in an attempt to circumvent the TPR is to insist that claimants have an independent "consultative examination" ("CE") when the treating doctors clearly support the disability claim. ALJ Nisnewitz insists on an independent CE because he assumes that treating doctors cannot be trusted. ALJ Nisnewitz's insistence on an independent CE is not found in the Social Security rules or regulations because the rules and regulations incorporate the opposite assumption, that is, that treating doctors are more reliable and credible because of their treating relationship, which is why the TPR requires them to be given greater weight.

As Judge Irizarry noted in her decision, the Social Security rules and regulations also require that an ALJ recontact a treating doctor regarding any alleged reason the ALJ has for rejecting that doctor's opinion. When ALJ Nisnewitz insisted on sending Ms. Bailey for an independent CE, I advised ALJ Nisnewitz that he first had to recontact the treating doctor, but ALJ Nisnewitz refused to do so because he knew the doctor would be able to explain away any excuse for discrediting his opinion. Judge Irizarry found that ALJ Nisnewitz violated the TPR and the Social Security regulations for CEs, by asking for a CE without making any attempt to recontact any of the treating doctors.

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