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.

David Nisnewitz Found Unfit To Be ALJ Again

I have previously described how federal court judges are constantly rejecting the decisions of Administrative Law Judge (“ALJ”) David Nisnewitz for repeatedly failing to comply with the laws regarding Social Security Disability (“SSD”) benefits.  ALJ Nisnewitz continues to make the identical errors of law year after year.  Therefore, I contended that his preference for denying disability claims inhibits his impartial judgment, which The American Heritage Dictionary defines as “bias."

Some of my prior blog entries also described a class action lawsuit that was filed last year, which accused ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants.  The class action is pending before federal district court judge Carol Bagley Amon.

Lazo-Espinoza v. Astrue, 2012 WL 1031417 (E.D.N.Y. Mar. 27, 2012) is the latest federal court decision involving a Nisnewitz decision.  It seems that federal district court judges are becoming just as fed up with Nisnewitz’s disdain for the law and rights of Social Security claimant’s as are the claimants and their representatives:

The administrative record here demonstrates that ALJ Nisnewitz, not only initially disregarded Plaintiff's need for a Spanish language interpreter, but he was dismissive, rude, and intolerant.  His failure to subpoena any of Plaintiff's treating physicians, including a specialist, to amplify the record shows a blatant disregard, not only of the legal standards, but of his obligations as a judicial officer and the basic rights and humanity of a vulnerable segment of our society, the disabled.  This court previously noted such intolerable conduct by ALJ Nisnewitz.  See Bailey v. Astrue, 815 F.Supp.2d 590 (E.D.N.Y.2011); Ginsberg v. Astrue, 2008 WL 3876067 (E.D.N.Y. Aug.18, 2008).

I represented the claimant in the Bailey case, which was reassigned to another ALJ because of Nisnewitz’s “contentiousness.”  Because of the “rudeness, dismissiveness and intolerance on the part of ALJ Nisnewitz that was not appropriate,” the court had to reassign Lazo-Espinoza's claim to a different ALJ on remand once again.

It seems clear to at least one federal district court judge that ALJ Nisnewitz is unfit to hear Social Security cases.  Hopefully, Judge Amon will agree that ALJ Nisnewitz should not hear any cases in the future.

The Social Security Administration may think that transferring ALJ Nisnewitz to another hearing office is the solution.  Such a transfer would not resolve any of the bias issues raised in the class action.  Rather, it would be akin to what the Catholic Church did with pedophile priests; i.e., they transferred the offenders and naively hoped the problem would go away.

ALJ Bias Overcome

Padro v. Astrue is the class action filed against Hazel C. Strauss, David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, and Marilyn P. Hoppenfeld, who are Social Security Administration Administrative Law Judges (“ALJs”) from Queens (the “Queens Five”). The Padro Amended Complaint, which can be downloaded from my web page’s Resources tab, alleges that the Queens Five are biased against claimants.

One of plaintiffs named in the Padro Amended Complaint is my client. She applied for Social Security Disability (“SSD”) benefits in April 2006. ALJ Nisnewitz denied the application in July 2007, but the Appeals Council remanded the case back to him in February 2009. In September 2009, ALJ Nisnewitz denied the application again, and the Appeals Council refused to review the claim, so I appealed to federal court.

The federal district court judge, Dora Irizarry, rejected Nisnewitz’s decision for many of the reasons asserted against him in the Padro bias class action. In fact, Judge Irizarry complained about Nisnewitz’s “contentiousness,” and ordered that the case be heard by a different ALJ.
The claim that Nisnewitz denied twice was approved today by another ALJ - without a hearing. However, because of ALJ Nisnewitz’s bias, the claimant had to wait three times as long as it should have taken the claimant to get her past due benefits. In the interim, she received no interest, and the cost to the SSA was needlessly excessive, as ALJ Nisnewitz required extra hearings and experts. Nisnewitz’s actions were a waste of tax dollars.

Padro is in the process of being settled. The settlement should result in many claimants whose applications were denied by the Queens Five receiving new hearings. Please contact our office if you would like more information about the Padro ALJ bias class action.