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.
Thursday, April 21, 2011
Friday, April 15, 2011
Working And SSD
After your Social Security Disability (“SSD”) application is approved you might be able to work without losing your benefits. A trial work period (“TWP”) allows you to test your ability to work for at least nine months without losing benefits, regardless of how much you earn, as long as your condition has not improved.
The first 36 months after the TWP ends is the re-entitlement period, during which SSD benefits can be reinstated without filing for a new period of disability. You can receive full SSD benefits for two additional months, the grace period, regardless of how much you earn.
The Appeals Council reviews SSD claims that Administrative Law Judges have denied. The Appeals Council rarely approves SSD claims, and Appeals Council allowances comprise only 0.1% of all approvals. Today, I received an Appeals Council approval for a 52 year old former youth coordinator, who had received a partially favorable decision.
The claimant returned to work for eleven months after he stopped working due to neck, knee, and back problems. The Appeals Council found that the claimant’s medical condition had not improved during those eleven months, even though he had resumed working. After applying the nine month TWP and two month grace period the Appeals Council ruled that there would be no break in the claimant’s SSD benefits.
The first 36 months after the TWP ends is the re-entitlement period, during which SSD benefits can be reinstated without filing for a new period of disability. You can receive full SSD benefits for two additional months, the grace period, regardless of how much you earn.
The Appeals Council reviews SSD claims that Administrative Law Judges have denied. The Appeals Council rarely approves SSD claims, and Appeals Council allowances comprise only 0.1% of all approvals. Today, I received an Appeals Council approval for a 52 year old former youth coordinator, who had received a partially favorable decision.
The claimant returned to work for eleven months after he stopped working due to neck, knee, and back problems. The Appeals Council found that the claimant’s medical condition had not improved during those eleven months, even though he had resumed working. After applying the nine month TWP and two month grace period the Appeals Council ruled that there would be no break in the claimant’s SSD benefits.
ALJ Bias Class Action
Last Wednesday, I wrote about the class action lawsuit filed against Administrative Law Judges (“ALJs”) David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”). If you are interested in the details of that lawsuit, I have added a link under my website’s Resources tab so you can read the actual complaint that was filed in court.
It should be noted that the lawsuit excludes three other ALJs in Queens hearing office: Margaret Pecoraro, Sol Wieselthier and Gal Lahat. There is a consensus that none of these three ALJs have exhibited the pattern and practice of anti-claimant bias that the Queens Five have demonstrated.
One of the goals of the class action lawsuit is to annul the decisions of the Queens Five that denied claims of disability claimants, and to provide new hearings before ALJs other than the Queens Five. If your disability claim has been denied in whole or part by one of the Queens Five, then you should consider contacting the attorneys representing the plaintiffs to ensure your inclusion in the potential class.
It should be noted that the lawsuit excludes three other ALJs in Queens hearing office: Margaret Pecoraro, Sol Wieselthier and Gal Lahat. There is a consensus that none of these three ALJs have exhibited the pattern and practice of anti-claimant bias that the Queens Five have demonstrated.
One of the goals of the class action lawsuit is to annul the decisions of the Queens Five that denied claims of disability claimants, and to provide new hearings before ALJs other than the Queens Five. If your disability claim has been denied in whole or part by one of the Queens Five, then you should consider contacting the attorneys representing the plaintiffs to ensure your inclusion in the potential class.
Wednesday, April 13, 2011
Federal Court Decision
I was retained to file an action in federal court seeking Social Security Disability (“SSD”) benefits that had been denied by Administrative Law Judge (“ALJ”) Robin Arzt. Today, Magistrate Judge (“MJ”) Ronald Ellis recommended that the ALJ’s decision be reversed, and remanded solely for a calculation of SSD benefits. The MJ’s decision is somewhat unusual since a majority of SSD cases are denied, and of those granted, most remand for another hearing before the same ALJ who heard the claim previously.
The claimant’s doctors said the claimant could not do sedentary work. However, ALJ Arzt rejected their opinions’ on the grounds that they supposedly were inconsistent with their clinical notes. MJ Ellis ruled that “it is well-settled that rejecting the opinion of a treating physician solely based on internal inconsistencies is error.” MJ Ellis noted that the treating doctors’ opinions were not contradicted by any other doctor, and that the ALJ had simply substituted her opinion for that of competent medical evidence.
MJ Ellis said that in the absence of contradictory medical evidence, there was no reason to remand the case for another hearing, especially since the claimant had filed for SSD benefits over six years ago. When looking to retain an attorney to handle your SSD case, ask for their experience litigating SSD cases. Understanding the issues that are important in federal court can help secure SSD benefits when the application is pending at Social Security, which can result in benefits being awarded years earlier.
The claimant’s doctors said the claimant could not do sedentary work. However, ALJ Arzt rejected their opinions’ on the grounds that they supposedly were inconsistent with their clinical notes. MJ Ellis ruled that “it is well-settled that rejecting the opinion of a treating physician solely based on internal inconsistencies is error.” MJ Ellis noted that the treating doctors’ opinions were not contradicted by any other doctor, and that the ALJ had simply substituted her opinion for that of competent medical evidence.
MJ Ellis said that in the absence of contradictory medical evidence, there was no reason to remand the case for another hearing, especially since the claimant had filed for SSD benefits over six years ago. When looking to retain an attorney to handle your SSD case, ask for their experience litigating SSD cases. Understanding the issues that are important in federal court can help secure SSD benefits when the application is pending at Social Security, which can result in benefits being awarded years earlier.
ALJ Bias In Queens
I have addressed the issue of Administrative Law Judges' ("ALJs") bias in the Queens Social Security hearing office on several occasions. The Social Security Administration ("SSA") even implied that my raising the issue of ALJ bias in my blog was untrue and disparaging. However, an article published in today's New York Times validates my opinion.
In "Suit Alleges Bias in Disability Denials by Queens Judges," Sam Dolnick wrote that the Queens hearing office, "is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits." The article cites statistics and comments from the same sources as my blog entries to demonstrate the aberrantly high denial rate for ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss.
Jim Walden is the attorney bringing the class action against the ALJs. The lawsuit seeks to bar the five ALJs from hearing any more claims, and to annul all their decisions since 2005 to deny benefits. My blog entries have asked how is it possible that Queens ALJs repeatedly make the same errors. Likewise, Mr. Walden said that the Queens ALJs “make the same legal and factual errors again and again.” Succinctly, Mr. Walden said that, “It is routine and systemic, and it shows you the fix is in.”
In "Suit Alleges Bias in Disability Denials by Queens Judges," Sam Dolnick wrote that the Queens hearing office, "is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits." The article cites statistics and comments from the same sources as my blog entries to demonstrate the aberrantly high denial rate for ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss.
Jim Walden is the attorney bringing the class action against the ALJs. The lawsuit seeks to bar the five ALJs from hearing any more claims, and to annul all their decisions since 2005 to deny benefits. My blog entries have asked how is it possible that Queens ALJs repeatedly make the same errors. Likewise, Mr. Walden said that the Queens ALJs “make the same legal and factual errors again and again.” Succinctly, Mr. Walden said that, “It is routine and systemic, and it shows you the fix is in.”
Sunday, April 10, 2011
ALJ Strauss Rejected Again
This is a follow up to my March 20, 2011 post entitled “ALJ Strauss Reversed Again, which has become a series of posts discussing how the federal courts are continually reversing the Social Security Disability ("SSD") decisions of Administrative Law Judge ("ALJ") Hazel Strauss. The decisions of U.S. district court judges reveal Strauss’ pattern of denying SSD claims by failing to comply with applicable rules and regulations.
Caira v. Astrue, 2011 WL 1326607 (E.D.N.Y. March 31. 2011), is the latest reported decision involving ALJ Strauss. Consistent with Strauss’ pattern of improperly denying SSD claims, in Caira, U.S. District Court Judge Raymond Dearie commented that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.” Judge Dearie seems to imply that Strauss did not reach her erroneous decision as a result of a simple mistake. Judge Dearie stated that Strauss’ rationale for her erroneous decision was a “mystery,” and that she “simply declared, without any analysis, that she gave ‘significant weight’ to the opinion of [the] consulting examiner,” and the State agency’s non-examining doctor. Judge Dearie ruled that Strauss “accepts these doctors’ bald conclusions despite substantial contemporaneous and contradictory evidence in the record.”
Judge Dearie also criticized Strauss’ slanted selectivity. Specifically, Judge Dearie found that Strauss “provided no basis for choosing one account over the other;” failed to incorporate the relevant facts into her analyses; “jumped to conclusions that were not adequately supported by the consultants reports;” and “credited only the sliver of [the treating doctor’s] written opinion which suits a finding that the claimant is not disabled, but ignored the vast majority of the opinion counseling otherwise.” Therefore, Judge Dearie concluded that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.”
Judge Dearie also found that Strauss’ reasons for rejecting the claimant’s credibility in Caira to be defective. Specifically, Judge Dearie found that Strauss’ “contentions are puzzling in light of the extensive documented objective evidence of the claimant’s disability.” Judge Dearie added that Strauss mischaracterized and overstated the claimant’s daily activities, which did not “even minimally” support an ability to work. To the contrary, Judge Dearie determined that, “There is not a hint of evidence in this case of fraud or malingering, and persuasive evidence exists of disability.”
Perhaps Judge Dearie is finally fed up with Strauss’ transparently wrong decisions. With seeming frustration with Strauss’ decision in Ciara, Judge Dearie refused to subject the claimant to another hearing before ALJ Strauss. Using harsh language for a federal district court judge, Judge Dearie held:
The Court will not sanction such a pointless exercise when proper application of the law to the existing record permits a single conclusion: that claimant is disabled and entitled to benefits.
A federal court has now explicitly announced that it is “pointless” to require a claimant to continue through the appeal process for a Strauss decision. At what point does the Social Security Administration have an obligation to pay attention to what the federal courts are saying about Strauss’ decisions? What point is there to wasting judicial and Administration resources by requiring claimants to appeal Judge Strauss’ decisions that follow her pattern of improperly rejecting and discrediting the opinions of treating physicians and claimants’ credibility?
Caira v. Astrue, 2011 WL 1326607 (E.D.N.Y. March 31. 2011), is the latest reported decision involving ALJ Strauss. Consistent with Strauss’ pattern of improperly denying SSD claims, in Caira, U.S. District Court Judge Raymond Dearie commented that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.” Judge Dearie seems to imply that Strauss did not reach her erroneous decision as a result of a simple mistake. Judge Dearie stated that Strauss’ rationale for her erroneous decision was a “mystery,” and that she “simply declared, without any analysis, that she gave ‘significant weight’ to the opinion of [the] consulting examiner,” and the State agency’s non-examining doctor. Judge Dearie ruled that Strauss “accepts these doctors’ bald conclusions despite substantial contemporaneous and contradictory evidence in the record.”
Judge Dearie also criticized Strauss’ slanted selectivity. Specifically, Judge Dearie found that Strauss “provided no basis for choosing one account over the other;” failed to incorporate the relevant facts into her analyses; “jumped to conclusions that were not adequately supported by the consultants reports;” and “credited only the sliver of [the treating doctor’s] written opinion which suits a finding that the claimant is not disabled, but ignored the vast majority of the opinion counseling otherwise.” Therefore, Judge Dearie concluded that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.”
Judge Dearie also found that Strauss’ reasons for rejecting the claimant’s credibility in Caira to be defective. Specifically, Judge Dearie found that Strauss’ “contentions are puzzling in light of the extensive documented objective evidence of the claimant’s disability.” Judge Dearie added that Strauss mischaracterized and overstated the claimant’s daily activities, which did not “even minimally” support an ability to work. To the contrary, Judge Dearie determined that, “There is not a hint of evidence in this case of fraud or malingering, and persuasive evidence exists of disability.”
Perhaps Judge Dearie is finally fed up with Strauss’ transparently wrong decisions. With seeming frustration with Strauss’ decision in Ciara, Judge Dearie refused to subject the claimant to another hearing before ALJ Strauss. Using harsh language for a federal district court judge, Judge Dearie held:
The Court will not sanction such a pointless exercise when proper application of the law to the existing record permits a single conclusion: that claimant is disabled and entitled to benefits.
A federal court has now explicitly announced that it is “pointless” to require a claimant to continue through the appeal process for a Strauss decision. At what point does the Social Security Administration have an obligation to pay attention to what the federal courts are saying about Strauss’ decisions? What point is there to wasting judicial and Administration resources by requiring claimants to appeal Judge Strauss’ decisions that follow her pattern of improperly rejecting and discrediting the opinions of treating physicians and claimants’ credibility?
Friday, April 8, 2011
Seven Year Wait Over
I was asked by another attorney to take over the Social Security Disability (“SSD”) case of a 52 year old Salvadoran aircraft plater who speaks very little English and has no formal education. The U.S. District Court granted my summary judgment motion, and remanded the case back to Administrative Law Judge (“ALJ”) Seymour Rayner.
The claimant had applied for SSD benefits in 2004, and had treated with various specialists for his lumbar radiculopathy since that time. Eventually, the claimant continued his treatment with his internist only when it was determined that there was little else his other doctors could do to improve his condition.
At the remanded hearing, among other things, I pointed out that the ALJ had previously been under the mistaken impression that the claimant’s internist was a chiropractor, which resulted in his opinion being given less weight. This time, the ALJ gave great weight to the internist’s opinion because he had been treating the claimant since 2004. Today I received a fully favorable decision from ALJ Rayner.
It is possible that had the mistake been brought to the ALJ’s attention upon reviewing the original decision, then the ALJ may have been persuaded to conduct a supplemental hearing to correct the error. As it stands, the claimant had to wait nearly three years for a decision from (a) the Appeals Council, which was a denial and the point at which I took over the case, and (b) federal court, which remanded the decision.
The claimant had applied for SSD benefits in 2004, and had treated with various specialists for his lumbar radiculopathy since that time. Eventually, the claimant continued his treatment with his internist only when it was determined that there was little else his other doctors could do to improve his condition.
At the remanded hearing, among other things, I pointed out that the ALJ had previously been under the mistaken impression that the claimant’s internist was a chiropractor, which resulted in his opinion being given less weight. This time, the ALJ gave great weight to the internist’s opinion because he had been treating the claimant since 2004. Today I received a fully favorable decision from ALJ Rayner.
It is possible that had the mistake been brought to the ALJ’s attention upon reviewing the original decision, then the ALJ may have been persuaded to conduct a supplemental hearing to correct the error. As it stands, the claimant had to wait nearly three years for a decision from (a) the Appeals Council, which was a denial and the point at which I took over the case, and (b) federal court, which remanded the decision.
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