Padro Settlement Agreement A Joke

Padro v. Astrue, Commissioner of Social Security, Civ. No. 11-1788 (E.D.N.Y.) was a class action brought by claimants whose applications for disability benefits from Social Security were denied by one of five Administrative Law Judges (“ALJs”) at the Queens Office of Disability Adjudication and Review:  ALJ Michael D. “Manuel” Cofresi, Seymour Fier, Marilyn P. Hoppenfeld, Hazel C. Strauss, and Hearing Office Chief David Z. Nisnewitz (the “Queens Five”).  The Court approved the settlement agreement in that action on October 18, 2013.  

 
Under the terms of the settlement, a class member whose claim for disability benefits was denied from January 1, 2008 through October 18, 2013 is entitled to a new hearing before an ALJ other than a Queens Five ALJ.   I represent a claimant, whose Social Security Disability application was denied by ALJ Hoppenfeld on March 15, 2012.  The Appeals Council remanded the matter back to ALJ Hoppenfeld on July 18, 2013.

ALJ Hoppenfeld refused to recuse herself.  Her assistant confirmed that my client’s case would not been reassigned to a non-Queens Five ALJ.  The entire purpose of the Padro settlement agreement was to prevent a claimant from having to be subjected to a second hearing before a Queens Five ALJ, which includes Hoppenfeld. Since I assumed there must be a mistake, I contacted Susan L. Beller, who supposedly is responsible for overseeing Padro claims.

Beller stated that my client’s hearing would not be reassigned because he was not eligible according to the HALLEX.  Beller failed to identify the specific HALLEX number that she claimed applied, but quoted the following:

1. Retrospective Relief
A class member eligible for retrospective relief is a claimant who received an unfavorable or partially favorable decision on a disability claim – including age 18 disability redeterminations and Continuing Disability Reviews (CDR) – from any of the five named ALJs between January 1, 2008 and October 18, 2013, with certain exceptions described below.
 A claimant is not eligible for retrospective relief if:
· A United States District Court affirmed the ALJ decision, and the claimant did not have a motion to alter or amend the Court's judgment pending as of the date the settlement becomes effective; or
· A United States District Court remanded the claim in an order that expressly declined to reassign the remanded claim to a different ALJ, and the claimant did not have a motion to alter or amend the Court's judgment pending as of the date the settlement becomes effective; or
· the claimant was already found eligible for all benefits for which he or she could be eligible based on the claim decided by one of the named ALJs; or
· the claimant already received a new decision on his or her claim by an ALJ who is not a named ALJ; or
· the claim decided by a named ALJ is pending with a different ALJ (other than one of the ALJs named above) at the time the claimant requests relief.

Beller’s response proves that the Queens hearing office is treating the Padro settlement agreement as a joke.

Beller conspicuously failed to say which of the five exceptions applied because she knows that none of them do.  Beller knows that this case was never in federal court so the first two exceptions cannot possibly apply.  Beller knows that the claimant’s benefits have not been approved so the third exception cannot possibly apply.  Beller knows that no ALJ has heard the case other than Hoppenfeld so the fourth exception cannot possibly apply.  Beller knows that the claim is pending with Hoppenfeld so the fifth and final exception cannot possibly apply.
  
Perhaps more importantly, the relevant source is the settlement agreement, not the HALLEX.  Section IIIA1(a)-(d) of the settlement agreement covers exceptions to its application, but Beller failed to say which supposedly applies to the claimant.  Section IIIA2 of the settlement agreement states in relevant part: “If a claim to be readjudicated has been remanded by the Appeals Council and is pending before a Named ALJ at the time of the Class member’s request for readjudication, the claim shall be reassigned.”  That is exactly my client’s situation.  The first sentence of the letter I emailed Beller stated: “I represent [claimant], whose Social Security Disability application was denied by Administrative Law Judge (“ALJ”) Hoppenfeld on March 15, 2012.  The Appeals Council remanded the matter back to ALJ Hoppenfeld on July 18, 2013.“

It is patently obvious that the Queens hearing office continues to operate in bad faith.  I have also sought help from the New York Regional hearing office and the Appeals Council, but my client's matter has not been reassigned, which raises the question whether any part of the Agency is taking the Padro settlement agreement seriously.

Please note that claimants will not be entitled to reassignment unless they affirmatively request it within 60 days of receiving the final Padro notice.  I do not understand why that was requirement allowed in the settlement agreement because why would anyone choose to have a second hearing with a Queens Five ALJ?  It seems that Social Security is hoping that claimants either will not receive their Padro notice, or will not understand that they need to insist that a non-Queens Five ALJ hear their new hearing.