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.