ALJ Nisenewitz: Stupid or Biased?

Administrative Law Judge David Nisnewitz (“ALJ”) denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected the ALJ’s denial because there was no medical evidence contradicting the opinion of the treating rheumatologist. This time, the ALJ relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though a federal court previously told the ALJ that the testimony of an ME, the lone dissenting physician, “does not constitute substantial evidence to overcome the opinions of the treating physician” that the claimant is disabled.

The ALJ knows from his past cases that he cannot elevate an ME’s opinion over a treating physician’s opinion. Therefore, how is it possible to explain the ALJ’s repeating the same mistake? What possible excuse did the ALJ have for repeating his error, especially since he was reminded in, not one, not two, but three letters that he had been admonished previously for improperly rejecting the opinion of the treating physician in favor of the ME?

The American Heritage Dictionary defines “stupid” as slow to apprehend or dumb, and “bias” as a preference that inhibits impartial judgment. Did the ALJ fail to realize that he was repeating his mistake, despite being reminded in the three letters that elevating an ME’s opinion over a treating physician’s opinion was improper? If so, then it would seem that the ALJ was slow to apprehend the issue, which is the American Heritage Dictionary definition for “stupid”.

Alternatively, the ALJ could have realized that he was repeating his mistake. If so, then it would seem that his preference for denying disability claims inhibited his impartial judgment, which is the American Heritage Dictionary definition for bias. Notably, in a recent Michigan case, another ALJ was accused of bias because his approval rate for disability cases was 41% and 28% in 2005 and 2006. In contrast, it appears that ALJ Nisnewitz’s approval rate was 35% for 2005 and 25% for 2006. The Michigan court also noted there was no evidence of inappropriate comments or animus by the ALJ. On the other hand, Judge Irizarry found ALJ Nisnewitz has displayed both.

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. Despite a court stating that investigating ALJ bias allegations would be appropriate on remand in another case, the SSA has refused to fulfill its duty to investigate the allegations. Instead, the SSA speciously claims that the court directed it to comply with a FOIA request, which simply was not the case.

Prudential Reverses Fibromyalgia STD & LTD Denial

I represent a former banker afflicted with fibromyalgia whose short term disability (“STD”) and long term disability (“LTD”) claims had been denied by Prudential Insurance Company of America. Prudential had based its decision to terminate STD benefits and deny LTD benefits on a so-called independent medical examination (“IME”) by a rheumatologist who does not regularly treat fibromyalgia.

The IME admitted the claimant has fibromyalgia; admitted that fibromyalgia is a pain syndrome, admitted that no objective testing exists for fibromyalgia; admitted that the claimant has a global pain syndrome; admitted that the pain is difficult to measure; and admitted that the claimant’s treatment is appropriate. The only difference between the opinions of Dr. Jason Faller, the claimant’s treating rheumatologist, and the IME, was that the IME stated that because the claimant’s pain was difficult to measure, she had no functional limitation. While the IME may have had difficulty measuring the claimant’s pain, Dr. Faller, as the claimant’s long time treating doctor, did not.

Prudential said that the only evidence of functional impairment was the claimant’s self-reported statements, but failed to identify what else could possibly exist other than Dr. Faller’s finding of severe trigger points. The IME had asserted that the claimant’s complaints were inconsistent with range of motion findings, and that absent atrophy, neurological abnormalities and decreased range of motion, the claimant could not be functionally impaired.

In a very abbreviated nutshell, I pointed out that Social Security Disability cases held that “decreased range of motion and/or sensory impairments are not symptoms of fibromyalgia, and the absence of these non-symptoms thus does not reflect on the presence or severity of fibromyalgia.” Prudential implicitly conceded that while no diagnostic test is applicable for fibromyalgia, making it difficult to measure pain in these individuals, the person in the best position to measure the claimant’s pain was Dr. Faller who had examined her many times over many years. Accordingly, Prudential approved both STD and LTD benefits for the claimant

LTD & Health Insurance

Some companies provide their employees with group disability and health coverage. Frequently, the long term disability (“LTD”) and the health insurance plans are linked so that if you become disabled under the LTD plan your premium is waived under the health plan. Thus, your health insurance continues while you are disabled. A problem arises when the LTD insurance company wrongfully terminates or denies LTD benefits, which results in a loss of health care coverage.

When you eventually succeed in securing your LTD benefits, you should not forget to seek reimbursement for your health care expenses. Any money paid toward COBRA or for other health insurance premiums should be sought. Similarly, if health insurance lapsed because the premium could not be afforded, your out of pocket costs should be sought. You should not have to pay any more than you would have if your health insurance was not wrongfully terminated or denied.

Sometimes other employee benefits are also linked to your LTD plan. When seeking LTD benefits always make sure that you have copies of a Summary Plan Description for each group benefit plan that covered you while working.

Teacher Finally Receives SSD Benefits

I was retained after a federal court remanded this case to ALJ Iris Rothman. The claimant’s prior attorney was ambivalent about representing the claimant because ALJ Rothman inexplicably refused to review the case objectively. Sure enough, ALJ Rothman denied the claim a second time despite overwhelming medical and vocational evidence.

Rather than the usual terse one or two page or two decision, the Appeals Council (the “AC”) remanded this claim a second time in a detailed five page remand order. The AC not only made it clear that ALJ Rothman’s second decision was utterly devoid of any merit, but strongly and repeatedly indicated that the claim met at least one of three listed impairments. If a listing is met, then the claimant is deemed disabled without any further evaluation.

The new ALJ assigned to the case issued a fully favorable decision on the grounds that the claimant’s macular degeneration equaled listing 2.04 as of her February 1, 2005 onset date. If you believe the denial of your SSD benefits was wrong seek a second legal opinion. While the legal process for reversing an erroneous benefits decision may take some time, SSD benefits should be approved as long as there is supporting medical and vocational evidence.

SSA Consultative Examiners

The reason that Administrative Law Judges give the vast majority of the time to deny applications for Social Security Disability (“SSD”) benefits is that the opinions of the state agency consultative examiners (“CEs”) show the claimant can work. Once again, a federal district court has ruled that it was improper for an ALJ to do so.

I was retained to appeal an SSD case to the Eastern District of New York, which was assigned to Judge Nicholas Garaufis. My primary argument was that the ALJ gave more weight to the opinions of the CEs than to the claimant’s treating doctors, and in doing so, failed to apply the treating physician rule properly. In the New York metro area, CEs are usually performed by Industrial Medicine Associates.

The claimant’s treating doctor provided a detailed residual functional capacity (“RFC”) assessment demonstrating the claimant lacked the ability to perform the physical demands of sedentary work. However, the ALJ interpreted the CEs’ vague conclusions as providing for a sedentary RFC, and relied on those opinions to deny the claimant’s SSD application. Judge Garaufis ruled that:

"As Plaintiff correctly notes, the ALJ cannot rely on those RFCs as evidence contradicting the Treating Physician RFC. This is because an inconsistency with a consultative examiner is not sufficient, on its own, to reject the opinion of the treating physician."

It seems that most ALJ SSD denials are based upon the opinions of the CEs, and most of the time the ALJ provides little or no reason for elevating the CEs’ opinion over that of the treating physician. Whether appealing to the Appeals Council or federal court, it is essential to point out the absence of a legitimate or logical basis for the ALJ’s rejecting the treating physician’s opinion.

Child’s Benefits

If you succeed in winning Social Security Disability (“SSD”) benefits, then you may also be entitled to receive additional benefits for your children under 18 years of age. The child’s benefit is usually about half of the SSD benefit. You cannot rely on the Social Security Administration (the “SSA”) to take steps to help you secure the child’s benefits.

I represent a 53 year old press operator whose SSD application was approved after 4 months. The SSA did not notify him about his right to child’s benefits. The claimant did not think he was entitled to child benefits because his son had already graduated from high school. However, the claimant’s SSD benefit onset date was several months before the son graduated. As a result, the claimant will be entitled to receive several additional thousand dollars worth of benefits.

When applying for SSD benefits, always disclose the identities of dependents. The disclosure provides a protective filing date for child’s benefits.

UPS

Aetna administers the United Parcel Service (UPS) long term disability (“LTD”) plan. Fortunately, UPS maintains the right to reverse Aetna’s decisions.

A UPS package supervisor retained me after Aetna terminated his LTD benefits on the grounds that he could do sedentary work based upon an functional capacity examination (“FCE”). In my 74 page appeal to Aetna, which included 46 pages of new medical records, I explained how the FCE actually showed that the claimant could not do sedentary work. Aetna denied the appeal based upon a peer review that rejected the FCE, and conclusorily stated that there was no clinical support showing the claimant was unable to do sedentary work.

Aetna’s final decision was hypocritical. Aetna relied upon the FCE to terminate LTD benefits, but Aetna refused to allow the claimant to rely upon the FCE after admitting that it showed the claimant could not do sedentary work. In other words, Aetna accepts evidence when it thinks the evidence will support its decision, but rejects the identical evidence when it thinks the evidence will not support its decision.

As for the peer review, Aetna provided absolutely no reason why it accepted the opinion of the peer review doctor it paid to review the claimant’s medical records, over the opinions of the claimant’s treating orthopedist, pain management specialist, internist, rheumatologist, physiatrist, and physical therapist, each of whom explained why the claimant could not do sedentary work. I pointed out these and other critical flaws to UPS, which reversed Aetna’s decision.

The claimant went without LTD benefits for nearly a year because of Aetna’s actions. To compound matters, the claimant’s other benefits, such as medical insurance, were terminated when the LTD benefits were terminated. The claimant had to spend thousands of dollars for medical testing, reports, and attorney’s fees to get his benefits reinstated. If UPS employees have any influence at work they should consider persuading management to replace Aetna.