Appeals Council Doltishness

When an obviously wrong decision by a Social Security Administrative Law Judge (“ALJ”) is appealed to the Appeals Council you would expect its Administrative Appeals Judges (“AAJs”) to correct it. Unfortunately, the AAJs too frequently fail to rectify the ALJ’s errors.

I received a decision by AAJs Barbara Johnson and Louann Igasaki that, rather than rectifying the error by ALJ Seymour Fier, who is one of the ALJ’s being sued in a class action for anti-claimant bias, actually compounds the ALJ’s error. Even though all three physicians stated that the claimant lacked a sedentary work capacity, Fier stated the claimant had a sedentary work capacity until March 2008 because the claimant was “working” until that date. Fier omitted from his decision that the claimant’s “working” in 2007 and 2008 only amounted to $1,725.28 and $4,233.00 respectively, which does not come close to approaching substantial gainful activity (“SGA”), and certainly fails to demonstrate the claimant had anything close to the ability to work on a sustained full time basis.

The case law and regulations are absolutely clear that a person is allowed to work without it affecting their right to SSD benefits as long as the work does not constitute SGA. To make matters even worse, even if the work had been SGA, Fier failed to consider whether the work constituted an unsuccessful work attempt or trial work period. The Appeals Council disregarded the case law and regulations, and affirmed the ALJ’s decision that the claimant had a sedentary work capacity. But that was not even their real error.

The claimant was over 55 years old at the time he became disabled. I advised the Appeals Council that ALJ Fier ruled that the claimant had no transferable skills, which was based on the testimony of the Vocational Expert (“VE”). Absolute proof that ALJ Fier concluded the claimant had no transferable skills was his applying Medical Vocational Rule 201.28, which is used when a claimant has no transferable skills. ALJ Fier mistakenly thought the claimant was under 50 years of age, and by applying Rule 201.28 would be able to deny benefits.

Because the claimant was over 55 years of age, ALJ Fier should have applied Rule 201.06. However, it makes no difference whether ALJ Fier’s applying Rule 201.28 was an attempt to deny SSD benefits consistent with his anti-claimant bias, or was a “clerical error” as AAJs Johnson and Igasaki claimed.

The claimant was over 55 years of age and had no transferable skills, and therefore, the medical vocational rules required that he be found disabled. Johnson and Igasaki claimed that a clerical error regarding the claimant’s age caused ALJ Fier to apply Rule 201.28. However, Fier’s clerical error regarding the claimant’s age had nothing to do with Fier’s conclusion that the claimant lacked transferable skills. Not surprisingly, Johnson and Igasaki failed to mention that there was any clerical error regarding the finding that the claimant lacked transferable skills.

Instead of correcting ALJ Fier’s obvious error, Johnson and Igasaki compounded it by issuing an order remanding the case for a VE to determine if the claimant had transferable skills – even though that was already done at the previous hearing, and even though Fier had already determined that the claimant lacked transferable skills. AAJs Johnson and Igasaki inexplicably ordered that another ALJ be assigned to the case.

Binder and Binder

The Wall Street Journal wrote an article yesterday that was highly critical of Binder and Binder. The article discusses how Tom Coburn, the Senator from Oklahoma, who is the top Republican on a subcommittee on Social Security, said Binder & Binder's practices were "potentially fraudulent" and raised questions on how many disability beneficiaries "are potentially improperly receiving benefits."

I doubt the charges that Binder & Binder engaged in fraudulent conduct since that implies they were knowingly and intentionally deceiving the Social Security Administration. It is much more likely that any alleged problems stemmed from Binder & Binder's practice of using non-attorney representatives to handle most of the work when processing Social Security Disability ("SSD") claims. It should be readily obvious that a claim will be handled more carefully, timely, and in compliance with applicable rules and regulations when the claim is handled by an attorney as opposed to a lay person. Binder & Binder is not alone in that respect.

As the Wall Street Journal pointed out, other large companies have tried to mimic Binder & Binder's volume business model. There are nationwide companies that Long Term Disability insurance companies tell people to use that handle SSD claims in a manner akin to Binder & Binder. Claimants should think twice before using the services of those large companies because they perceive the insurance companies as their clients.

When deciding who to chose to represent you for your SSD application, make sure that an attorney is the person who will handle every phase of your claim.

NYCERS Disability Pension

I represent a 48 year old hospital executive whose application for disability retirement benefits under Article 15 of the Retirement and Social Security Law was recommended by the Medical Board four months after it was filed. To qualify for a disability pension, an applicant has to show that he or she is permanently incapacitated from performing his or her regular job duties. This showing requires linking the medical evidence to the vocational evidence.

The claimant sustained injuries when hit by a car at work. The medical evidence from the claimant’s orthopedists, internists, and physiatrist provided the clinical findings to support their opinions regarding the claimant’s restrictions and limitations. The clinical findings and opinions were further corroborated by diagnostic tests, hospital records, and medication prescribed. Additionally, I explained how the Social Security Disability and Workers Compensation reports and awards substantiated the NYCERS claim.

Once the functional capacity was objectively supported, I established the claimant’s work duties through Department of Labor publications and a vocational evaluation. The key was demonstrating how the claimant’s restrictions and limitations precluded her from performing the work duties and physical requirements identified in the publications and vocational evaluation, as that showed a permanent incapacity from performing regular job duties.

It is always possible that the claimant may eventually have been approved for a disability pension without the vocational evidence. However, the claimant’s chances of succeeding, and doing so initially, certainly improved by addressing the vocational as well as the medical evidence.

Can You Receive SSD If You Have Income?

I received a decision today from Administrative Law Judge (“ALJ”) Seymour Rayner that approved Social Security Disability (“SSD”) benefits for the owner of a home improvement business. ALJ Rayner readily accepted that the claimant was disabled from his past work as a carpenter due to various cardiovascular related impairments. However, ALJ Rayner required a supplemental hearing to determine whether the claimant’s income as business owner precluded the receipt of SSD benefits.

Experience has shown that there is a presumption that self employed SSD claimants are working off the books. In this particular case, the disability examiner explicitly told the claimant that he would never receive SSD benefits because the examiner believed the claimant was still working.

Passive income does not prevent a claimant from receiving SSD benefits. For example, workers compensation or private disability benefits are not an automatic bar to receiving SSD benefits. Accessing an individual retirement account or tapping funds from other non-work sources such as investment income, rental property, annuities or earned interest, will not prevent entitlement to SSD benefits.

I provided ALJ Rayner with the claimant’s business records. There was no documentary evidence that the claimant was performing work or services of any kind. The claimant was simply taking periodic payments from the business as profits. In other words, the money that the claimant was getting from his business was passive income, and was no different than profits from selling stocks or bonds.

There are many ways to establish that income received is not the type that would preclude receiving SSD benefits. Simply because a Social Security representative says you cannot get SSD because you have income is not necessarily true.

Adverse Evidence

When seeking a fully favorable decision on the record (“OTR”) to avoid a hearing on an application for Social Security Disability (“SSD”) benefits, it is important to address the adverse evidence as well as the supporting evidence.

I represent a 42 year old woman who worked in automotive customer service since she graduated from high school in 1988. The treating neurologist said the claimant lacked the ability to perform sedentary work due to cervical radiculopathy and an Arnold Chiari malformation. An Attorney Advisor approved the claimant’s OTR today, accepting the neurologist’s cervical radiculopathy diagnosis, but rejecting the Arnold Chiari malformation diagnosis.

The claimant had a cervical MRI that revealed, among other things, a herniated disc compressing the spinal cord and nerve root. While one head MRI revealed an Arnold Chiari malformation, the other revealed less severe findings that did not meet the diagnostic criteria of an Arnold Chiari malformation. Nonetheless, the Attorney Advisor still gave controlling weight to the treating neurologist’s opinion.

A Social Security doctor rejected the neurologist’s opinion and claimant’s complaints. Investigation disclosed that the Social Security doctor was an endocrinologist, which I argued was unqualified to evaluate the claimant’s neurological condition. That point was proven by the Social Security doctor’s suggestion that the claimant have a psychological exam, which obviously was completely irrelevant to the claimant’s impairments. More importantly, the Social Security doctor said that the treating neurologist’s clinical findings were disproportionate to the claimant’s MRIs, which showed spinal cord and nerve root compression. No neurologist would concur with the Social Security doctor’s absurd conclusion.

The Attorney Advisor may have had concerns about the reliability of the treating neurologist’s opinion since there was equivocal evidence regarding the Arnold Chiari malformation diagnosis. Given that concern, the Attorney Advisor could have rejected the OTR and left it to the Administrative Law Judge to evaluate the treating neurologist’s opinion. If the Attorney Advisor was ambivalent about the OTR, by utterly rebutting the viability of the Social Security doctor’s opinion, which was the only adverse evidence in the file, it should have removed any concerns about approving the OTR.

Multiple Impairments

Can you be found disabled if you have more than one medical condition even if no single impairment is disabling? Under the Social Security regulations, the answer is yes. When evaluating an application for Social Security Disability (“SSD”) benefits, the combined effect of a claimant’s multiple impairments must be considered.

A 41 year old boilermaker from Tennessee retained me to appeal the denial of his SSD application. Six weeks after I received the claimant’s file, I submitted a request for a fully favorable decision on-the-record (“OTR”), which was approved in three weeks. Thus, the claimant was able to avoid the stress of, and wait for, a hearing.

The claimant has a seizure disorder, sleep apnea, headaches, mild memory loss, difficulty concentrating, and arthritis causing joint, neck, and back pain. None of the impairments met a listing, and no single medical condition resulted in an inability to perform simple unskilled work.

The claim file that Social Security compiled had no records from the claimant’s physician, and the prior denials were based solely on the opinion of the Social Security doctors. I not only obtained the treating doctor’s records and functionality assessment, but I detailed the multitude of medical findings that supported the disability opinion. For example, the OTR explained what encephalomalacia and hematoma are, how they were treated, and why they caused the claimant’s mental and physical limitations. I also cited the Tennessee law that justified giving the treating physician’s opinion controlling weight, which language was tracked in the decision approving benefits.

Rheumatoid Arthritis

According to the Arthritis Foundation, Rheumatoid Arthritis or “RA” is an incurable form of inflammatory arthritis and an autoimmune disease. In RA, the immune system attacks the body’s own tissues, specifically the synovium, which is a thin membrane that lines the joints. As a result of the attack, fluid builds up in the joints, causing pain in the joints and inflammation that can occur throughout the body. The pain and stiffness from RA can become disabling.

I represent a 51 year old dental hygienist who was approved yesterday because the Administrative Law Judge (“ALJ”) accepted the opinion of the claimant’s rheumatologist that the claimant’s RA precluded her from performing sedentary work. Blood tests and x-rays objectively established the diagnosis of RA. The ALJ concluded that the clinical findings and symptoms of joint pain, stiffness, weakness, reduced range of motion, decreased grip strength, and tenderness supported the rheumatologist’s functional assessment.

As noted in my September 16, 2011 blog, a claimant can obtain an opinion that the RA is severe enough to meet listing 14.09, which is potent medical evidence. However, as listing explanations come in narrative form, many doctors charge a substantial fee for the opinion.

Cerebrovascular Accident & SSD

According to the Merck Manual, a stroke is called a cerebrovascular disorder because it affects the brain (cerebro-) and the blood vessels (vascular). A stroke or cerebrovascular accident (“CVA”) occurs when blood stops flowing to the brain causing permanent brain damage from cells dying. Stroke symptoms include numbness or weakness to one side of the body, confusion, difficulty speaking, vision loss, imbalance, and headache.

I represent a 52 year old postmaster who had to stop working because of a CVA. The claimant’s application for Social Security Disability (“SSD”) benefits was approved without a hearing. An Attorney Advisor approved my request today for a fully favorable decision on-the-record (“OTR”) based on meeting listing 12.02.

Hospital records and diagnostic testing established that the claimant had suffered a stroke. Clinical records revealed the claimant lost cognitive ability, memory, and impulse control, while experiencing mood disturbance, left sided weakness, slurred speech, and personality change. I was able to obtain reports from the claimant’s neuropsychologist that explained why the claimant’s symptoms resulted in marked functional mental limitations.

Despite the medical records supporting the claimant’s entitlement to SSD benefits, the State agency had originally denied the application based upon the opinion of a State agency doctor, who never examined the claimant. My OTR cited the case law holding that where psychological impairments are involved, the opinion of a medical professional who has examined the claimant face-to-face is more reliable than that of a nonexamining physician. The rationale is that a treating psychiatrist's opinion, based on medical evidence derived from face to face visits, is “inherently more reliable than an opinion based on a cold record because observation of the patient is critical to understanding the subjective nature of the patient's disease and in making a reasoned diagnosis.”

The Attorney Advisor agreed with my criticism of the of State agency doctor’s opinion, and gave it little weight. Being able to quote case law directly on point regarding the reliability of the State agency doctor’s opinion certainly elevated the weight of the treating doctor’s opinion, and perhaps was the reason why the claimant was able to avoid the protracted wait for a hearing.

Was A Video Hearing Needed?

Can Medical Records Be Too Good? I represent a 60 year old guidance counselor with cervical and lumbar radiculopathies, which were supported with very severe EMG and MRI testing. The claimant, who had a 40 year work history with a high salary, also had marked depression according to the treating psychiatrist. The medical evidence was so strong that I was surprised when the Administrative Law Judge (“ALJ”) rejected the claimant’s request for a favorable on-the-record (“OTR”) decision.

Because the OTR was rejected, a hearing was required. The claimant permanently relocated from Long Island to Florida during the application process because the warm weather was better for his health. The ALJ held the hearing in Orlando with the claimant and the vocational expert (“VE”), while I appeared via videoconference at the Jericho hearing office.

The hearing started with my questioning the claimant. About 20-30 minutes into my direct examination of the claimant, the ALJ politely interrupted me to say that he was paying the claim. The VE never even testified. The ALJ explained that the treating doctors’ mental and physical functional capacities were so limited that he felt he needed to see and hear the claimant for himself. The ALJ said that he was concerned that the doctors were focused on trying to help the claimant get benefits, rather than accurately assessing the claimant’s functionality.

The claimant worked for 40 years and earned a good salary, and returned to work after very severe motor vehicle accidents. Of course he only stopped working when he was no longer able to do so. In fact, he worked longer than he should have, and his severely limited ability to work was reflected in his doctors’ limited functional assessments.

It was improper to insist that the claimant appear for a hearing because the ALJ questioned the accuracy of the treating doctors’ functionality reports. The rules make clear that an ALJ is not supposed to make his decision based on a “sit and squirm” test. Rather, as the rules and regulations provide, if the ALJ has concerns about the accuracy or consistency of medical records, then the ALJ has a duty to recontact the treating sources about the records.

NOSSCR Conference

Every time I go to a NOSSCR conference, I hope to take back a couple of things that I can use on a regular basis. Last week at San Antonio was no exception. The one thing that stands out was a case I heard about during the Second Circuit meeting.

The case is called Edwards v. Astrue, and was issued by Judge Mark Kravitz in Connecticut last August. According to the attorney who represented the Social Security claimant, Judge Kravitz ruled that an ALJ cannot allow a hearing expert to testify by telephone over the objection of a claimant. I googled the facts on my iphone as he described the case, and found it on Justia. Much to my surprise, Judge Kravitz did reject the ALJ's decision denying the claimant disability benefits because the medical expert was allowed to testify telephonically.

When I returned from the NOSSCR conference, I had Edwards published on Westlaw. Its cite is Edwards v. Astrue, 2011 WL 3490024 (D.Ct. Aug. 10, 2011). Why is Edwards important?

Some ALJs, like the five ALJs accused of anti-claimant bias in the Queens Class Action, have hearing experts from outside the area testify by telephone. The ALJs eschew the rules that require them to select experts in rotation, and hand pick those experts who they know from experience will testify adversely to claimants. Edwards reduces the ability of ALJs to cherry pick bad experts.

If you believe that an ALJ is improperly relying on a hearing expert who testifies telephonically, then object. You have the right to confront a witness, especially an adverse one. I would also suggest making FOIA requests to see how often ALJs use experts. I think NOSCCR should pressure the SSA to publish that information annually, or make annual FOIA requests for that information on behalf of its membership.

SSD Approved in 2 Weeks

I represent a 60 year old claimant who alleged that he became disabled after working 40 years as a steamfitter due to his diabetes and cardiovascular impairments. The claimant’s application for Social Security Disability (“SSD”) benefits was denied twice, even though it was conceded that he could no longer work as a steamfitter. He then retained me to represent him at a hearing.

I immediately reviewed the SSA’s electronic file, and obtained reports from the claimant’s endocrinologist and internist to provide the medical findings, conclusions, and functional evaluations that I believed were needed to strengthen the case. Rather than waiting for a hearing, I filed a request for a fully favorable decision on the record (“OTR”). I pointed out that the application had been denied based upon the opinion of a non-examining orthopedist, who was unqualified to evaluate diabetic or cardiovascular problems. The OTR was approved two weeks later, as controlling weight was given to the opinions of the claimant’s endocrinologist and internist.

The claimant’s case was at the White Plains, NY hearing office. According to the Social Security Administration, the average wait time for a hearing at that office is a year, but local practitioners believe the typical waiting time is actually longer. In any case, an OTR should always be made whenever there is objective medical evidence to support an SSD claim.

SSD Approved In 2 Months

Last Friday’s blog entry discussed disability benefits and diabetes. Today, I received an approval of another claimant with diabetes just two months after filing his application for Social Security Disability (“SSD”) benefits.

The 52 year old claimant had worked for over 20 years as a truck driver. His diabetes not only resulted in neuropathy, but also prevented a broken ankle from healing properly. Neuropathy and difficulty healing are both symptoms of diabetes.

It must have been readily obvious that a person who has those conditions is incapable of working as a truck driver, which not only requires heavy lifting, but also using foot controls. Because of the special medical – vocational rules that applied in the claimant’s case, even if he had been capable of performing sedentary desk work, he would have been entitled to SSD benefits.

Disability and Diabetes

Diabetes is a group of diseases characterized by high blood glucose levels that result from defects in the body's ability to produce and/or use insulin. According to the American Diabetes Association, 8.3% of the population has diabetes, which contributes to hundreds of thousands of deaths a year, and causes: frequent urination, thirst, extreme hunger, unusual weight loss, extreme fatigue and irritability, frequent infections, blurred vision, slow healing cuts and bruises, and tingling and numbness in the hands and feet.

Millions of people in the United States have diabetes. A person can readily establish a diagnosis of diabetes through routine laboratory blood tests. The question for disability adjudicators is when is diabetes severe enough to warrant being found disabled. Stated from the claimant’s perspective, how does one show that his or her diabetes precludes working on a sustained basis?

As noted above, diabetes can cause many different types of symptoms of varying intensity. While all symptoms should be pointed out, I find that tying the most serious ones to a specific work function is the best approach. I represent a former electrician whose disability application was approved today because of the effect that diabetes had on his ability to work.

I secured reports from the claimant’s endocrinologist. He confirmed that the claimant had many of the typical diabetes symptoms: lower extremity pain and weakness, hand weakness, vascular disease, loss of manual dexterity, rapid heartbeat, dizziness, difficulty walking, nausea, kidney problems and frequent urination, excessive thirst, depression, and fatigue. The most problematical symptoms were the pain, numbness, and tingling in the feet, which made walking and standing very difficult.

The endocrinologist concluded that the claimant was unable to stand or walk for even one hour a day because of the diabetes. To support his conclusion, the doctor cited Nerve Conduction Studies that revealed sensorimotor polyneuropathy in the lower extremities. The diabetic peripheral neuropathy objectively established the nerve damage that credibly explained the claimant’s inability to be on his feet, which is required for any full time occupation.

Social Security Benefit Increase

Starting next year, people who are receiving Social Security Disability benefits will get a 3.5% increase in their benefits. This will be the first such raise in three years. However, Medicare premiums will also rise next year, which will reduce the anticipated 3.5 increase somewhat.

Vocational Experts

In general, a vocational expert (“VE”) is an expert in the areas of vocational rehabilitation, vocational and earning capacity, lost earnings, cost of replacement labor and lost ability/time in performing household services. They typically perform evaluations for purposes of civil litigation, as an aspect of economic damages.

The role of a VE is somewhat different at a Social Security Disability (“SSD”) hearing. In theory, a VE is supposed to testify about the number of jobs in the national economy that are available for an individual with a specific set of functional limitations. However, in practice, role of the VE at a SSD hearing is usually to create evidence for the Administrative Law Judge (“ALJ”) who has already determined that the claimant is not disabled, and uses the VE to present testimony to substantiate that the claimant can work.

A claimant with spina bifida asked me to represent him after his initial hearing with an ALJ. The claimant had received SSD in the past, but asked that it be stopped because he wanted to try working out of his house. A couple of years later, after surgery related to his spina bifida rendered him incontinent, the claimant stopped working and reapplied for SSD.

Prior to the hearing, I provided the ALJ with a report from a VE that explained in detail why the claimant’s need for bathroom breaks and access rendered the claimant incapable of working. The ALJ agreed, and approved his SSD application.

The VE report was expensive, but I convinced the claimant that the cost was worth it, especially since it would amount to less than one month’s benefits. I received the claimant’s notice of award today, which specified that his past-due benefits are over $190,000.

IMA Consultative Examinations

When filing for Social Security Disability ("SSD") benefits, the overwhelming vast majority of the time, the Social Security Administration ("SSA") sends notices to claimants that they have been scheduled for a “consultative examination” ("CE"). In New York, the CE notices are sent by the Office of Temporary & Disability Assistance (the “State agency”), which is responsible for making the initial medical decision on SSD claims. The notices say that IMA Disability Services will perform the CE. The notice is usually followed by phone calls from IMA warning that the SSD application will be denied if the claimant fails to appear for the appointment.

The CE notices are misleading because they state, “It will be necessary for you to be examined by the Specialist named below.” The so-called specialist is “IMA Disability Services.” The CE notices also state that, “You must keep this appointment at the time and date indicated below.” The use of the words “necessary” and “must” are untrue because most claimants do not need to be seen by a doctor from IMA.

The SSA rules and regulations actually provide for relatively few situations where a CE would be appropriate. Three of my SSD clients were approved for benefits today. The SSA had sent CE notices to all three of the claimants, but none of them went for the CE.

In all three cases, I filed written objections to the CE, specifying the factual and legal reasons why the CE would violate the SSA rules and regulations. In the limited circumstances where a CE is actually needed, it is supposed to be performed by a treating doctor. As discussed in my September 28, 2011 blog entry, the SSA cannot ask a claimant to go for a CE simply because it wants an “independent’ opinion. Before asking a claimant to go for a CE on the grounds that a treating doctor’s report supposedly contains a conflict or ambiguity that must be resolved, the SSA is obligated to ask the treating doctor to explain the alleged conflict or inconsistency.

Hoppenfeld & The Rotation Policy

My September 23, 2011 blog entry discussed the conduct of Administrative Law Judge (“ALJ”) Hoppenfeld during a recent hearing. Among other things, I explained how ALJ Hoppenfeld misused Medical Experts (“MEs”). One of the ways that it seemed Hoppenfeld misused MEs is by violating the rotation policy of the Social Security Administration (the “SSA”).

The SSA’s rotation policy is found in the HALLEX, which is the Hearings, Appeals and Litigation Law manual. The HALLEX defines the procedures for executing the Appeals Council policy in adjudicating disability claims. The rotation policy is found at HALLEX I-2-5-36(D):

Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See I-2-5-31, Blanket Purchase Agreements.) An ALJ must select an ME who is maintained on any RO's roster to the extent possible. The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called. If an ME in the specialty needed by the ALJ is not available on the RO roster of the HO's region, then the ALJ should look to other RO rosters to obtain the services of an ME.

My September 23, 2011 blog entry explained why it looked like ALJ Hoppenfeld violated the rotation policy by using ME Jonas for my last two clients’ hearings. Merely an odd coincidence? Notably, when my last client was proceeding pro se, ALJ Hoppenfeld did not find any reason to call experts. However, after Hoppenfeld learned that I was representing the claimant, she suddenly saw the need for THREE experts, including ME Jonas, even though not a single document had been added to the file. It would seem incumbent upon the SSA to investigate whether ALJ Hoppenfeld ever orders MEs when claimants appear pro se, and whether she orders MEs after pro se claimants retain attorneys.

The other ME at my client’s hearing was Dr. John Axline. Judge Coogan just issued a new decision Knight v. Astrue, 2011 WL 4073603 (E.D.N.Y. Sept. 13, 2011). Consistent with Hoppenfeld’s conduct in cases where I represent claimants, as well as the class action allegations that Hoppenfeld is biased against claimants, in Knight, Hoppenfeld refused to comply with the treating physician rule by elevating the ME's opinion over the treating physician’s opinion. In the latest decision, the ME just happened to be John W. Axline, the same ME who Hoppenfeld selected to testify at my client’s hearing. Judge Coogan found that Hoppenfeld gave “conclusory reasons for her decision to credit the opinion of the independent medical expert, Dr. Axline, over that of” the treating doctor. Judge Coogan ruled that the medical evidence “clearly” failed to “substantiate Dr. Axline's RFC determination or discredit that of” the treating doctor.

Judge Coogan has become the latest in the long line of federal district court judge’s who have rejected ALJ Hoppenfeld’s decisions for the very reasons alleged in the class action, which are the same reasons that apply in the cases where I have represented claimants before Hoppenfeld.

Hoppenfeld’s misuse of experts must be investigated. As noted above, the SSA should investigate whether ALJ Hoppenfeld ever orders MEs when claimants appear pro se, and whether she orders MEs after pro se claimants retain attorneys. Additionally, each regional hearing office maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a Blanket Purchase Agreement. As ODAR now encourages MEs to appear by telephone, ALJs like Hoppenfeld now can pick MEs who are located anywhere in the country. Therefore, the chances of an ALJ using the same ME should be far smaller now than in the past, yet Hoppenfeld is using the same MEs. ME Axline certainly does not live close to the Queens ODAR, which is why he testifies by telephone. The SSA should verify if Hoppenfeld is complying with the rotation policy. The SSA can do that by reviewing the expert invoices prepared for use at Hoppenfeld’s hearings. Any vouchers and other documentation that are used in the selection and payment of MEs should also be reviewed for hearings that ALJ Hoppenfeld has held.

Alzheimer’s

According to the Alzheimer’s Association, Alzheimer's is the most common form of dementia, which is a general term for memory loss and other intellectual abilities serious enough to interfere with daily life.

Applying for Social Security Disability (“SSD”) is usually a lengthy process. However, if you have a critical condition that requires an immediate decision you may be eligible to request a Compassionate Allowance, which is designed to reduce the time between applying and receiving benefits. Compassionate Allowances are an expedited way for the Social Security Administration (“SSA”) to identify medical conditions that invariably qualify for SSD benefits based on minimal objective medical information.

I represent a 60 year old claimant who worked in security. He was diagnosed with Alzheimer’s, which is one of the diseases included on the Compassionate Allowance list. Others on the list include cancers, lymphomas, mesothelioma, Creutzfeldt-Jakob Disease, Lesch-Nyhan Syndrome, and spinal or brain injuries. To avoid any potential delay, after the application was filed earlier this month, reports regarding the claimant’s dementia were faxed and followed up almost on a daily basis to ensure that everything was received and being immediately processed as a Compassionate Allowance. The claimant’s SSD benefits were approved on September 26, 2011, less than 4 weeks after the application was filed.

The SSA can deny a request for a Compassionate Allowance just like any other SSD claim. Similarly, the SSA can lose evidence submitted on a Compassionate Allowance claim, or have it fall through the bureaucratic cracks like thousands of other SSD claims. While an attorney may not be required to obtain SSD benefits in the long run for a condition on the Compassionate Allowance list, if time is a concern, then an attorney can help ensure that the SSD application, along with any Child’s Benefits application, will be expeditiously and properly processed as a Compassionate Allowance.

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.

Approval After Federal Court Remand

I took over a Social Security Disability (“SSD”) claim for a 40 year old nurse technician with severe physical and mental impairments from another attorney when the claim had to be appealed to federal court. I succeeded in federal court, and the case was remanded to Administrative Law Judge (“ALJ”) Newton Greenberg.

ALJ Greenberg denied the claim for a second time based upon a medical report from Mohammed Khattak. Khattak was the doctor who examined the claimant one time for the Social Security Administration (“SSA”). I advised ALJ Greenberg in writing and during the hearing that the SSA had removed Khattak from its panel of doctors because his reports contained findings and conclusions that Khattak knew were false. The Appeals Council rejected ALJ Greenberg’s decision, and the case was reassigned to ALJ Jerome Hornblass.

Today, I received a fully favorable decision from ALJ Hornblass, who ruled that the claimant became disabled on April 30, 2003, based on the opinion of the treating psychologist, Dr. Ed Robins. Dr. Robins had concluded the claimant was unable to work in a report that I had secured for the claimant’s prior hearing with ALJ Greenberg. Consistent with SSA rules and regulations, ALJ Hornblass explained that Dr. Robins’ “extended treatment and observation of the claimant allows a more insightful and detailed, longitudinal picture of claimant’s medical impairment.” ALJ Greenberg had rejected Dr. Robins’ opinion in favor of Mohammed Khattak.

The claimant can now expect to receive eight years of past due SSD benefits. As you can imagine, the claimant’s inability to work and deprivation of benefits had created incredible financial and emotional problems for the claimant. The claimant’s protracted plight was caused by an ALJ who inexplicably refused to follow the unambiguous rules and regulations of the SSA. Fortunately, the claimant chose to pursue her appeals rather than simply give up.

Abusive Hoppenfeld Conduct

On April 22, 2011, I discussed the class action lawsuit that accuses Administrative Law Judges (“ALJs”), including Marilyn P. Hoppenfeld, of bias against Social Security disability claimants. The New York Times article about the class action, and a copy of the class action complaint, can be found on my web page’s Resources tab. I had a hearing yesterday with Hoppenfeld that mirrors the allegations in that class action lawsuit.

From the outset, Hoppenfeld tried to intimidate the claimant. In one of the most disgusting displays that I have ever seen by an ALJ, despite the fact that Hoppenfeld knew the claimant had an IQ in the retarded range, she kept telling him that his mother should be arrested for not making him go to school. When she saw that her comment upset the claimant, ALJ Hoppenfeld continued to ask why his mother had not been arrested. Moreover, Hoppenfeld refused to sit at her seat, and stood over the claimant throughout much of the hearing. Furthermore, in addition to screaming at me and interrupting my cross examinations in front of the claimant, Hoppenfeld had a guard stand in back of him, and then had the guard sit facing the claimant.

One of the issues in the claimant’s case is Hoppenfeld’s misuse of experts. When the claimant was proceeding pro se, ALJ Hoppenfeld did not find any reason to call experts. However, after Hoppenfeld learned that an attorney was representing the claimant, she suddenly saw the need for THREE experts. I reviewed the claimant’ official SSA file on line both before I was retained, and after ALJ Hoppenfeld decided three hearing experts were needed. Not a single document was added during the interim. The only change was that ALJ Hoppenfeld now knew that the claimant was being represented by an attorney. That decision, in and of itself, evidences Hoppenfeld’s bias. But there is much more.

Misuse of experts happens to be one of the allegations in the class action lawsuit filed against ALJ Hoppenfeld for her anti-claimant bias. The class action alleges that her “consistent errors are highly probative of her anti-claimant bias,” and her pervasive misuse of experts is one of the examples of those consistent errors.

One way that ALJ Hoppenfeld abuses the hearing process is by failing to comply with Social Security’s rotation policy in HALLEX I-2-5-36(D), which provides:

Each RO maintains a roster of MEs who have agreed to provide impartial expert opinion pursuant to a BPA with the Office of Hearings and Appeals (OHA). (See I-2-5-31, Blanket Purchase Agreements.) An ALJ must select an ME who is maintained on any RO's roster to the extent possible. The ALJ or designee must select an ME from the roster in rotation to the extent possible; i.e., when an ALJ selects an ME with a particular medical specialty from the roster to provide expert opinion in a case, that ME will go to the bottom of the roster and will not be called again by that ALJ or any other ALJ in the HO until all other MEs on the roster with that medical specialty are called. If an ME in the specialty needed by the ALJ is not available on the RO roster of the HO's region, then the ALJ should look to other RO rosters to obtain the services of an ME.

As part of its investigation into ALJ Hoppenfeld’s anti-claimant bias, Social Security needs to review if she complies with the rotation policy. Both hearings I had with Hoppenfeld during the past 2 years included the same Medical expert (“ME”), a psychiatrist named Alfred Jonas. In the first case, Jonas testified that fibromyalgia is really misdiagnosed depression, and Hoppenfeld refused to allow me to cross examine ME Jonas regarding the basis for his belief that fibromyalgia does not really exist.

Yesterday was the next time I had a case with ALJ Hoppenfeld, and once again ALJ Hoppenfeld had ME Jonas testifying. It is either an incredible coincidence that ME Jonas was selected for each hearing, or it is further proof that ALJ Hoppenfeld intentionally skirts the rotation policy in order to use experts who she knows from prior practice would testify adversely to claimants. ME Jonas’ testimony at the claimant’s hearing certainly supports the latter.

The claimant had a Comprehensive Psychological Evaluation (“CPE”) performed by Dr. Gus C. Pappetrou, a VESID psychologist. VESID is a New York State agency that tries to help disabled people find or maintain work. The claimant is a 52 year old, with a fourth grade education. Because he was unable to continue his unskilled work as a roofing helper due primarily to back and knee pain, the claimant sought VESID’s help to find alternative employment. VESID sent the claimant to Dr. Papapetrou for the CPE, which was a battery of psychological tests, including IQ tests. ME Jonas apparently thought Dr. Pappetrou was the claimant’s psychologist, and testified that he did not know what VESID is.

The CPE found that the claimant had a Verbal IQ of 69 and a Full Scale IQ of 67. If a claimant has a Verbal IQ of 69 OR a Full Scale IQ of 67, then if he has an additional limitation imposing significant limitations of function, it would require a finding of disabled under listing 12.05C. The claimant’s treating physician concluded that the claimant cannot even perform sedentary work. However, as stated in the class action, ALJ Hoppenfeld has a practice and pattern of ignoring treating physician opinions. Hoppenfeld’s second ME was J. Warren [1]

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[1] Axeline also went out of his way to try to discredit the claimant. Even though the claimant had testified that he took extra pain medication today because he knew he would have to sit for a prolonged period of time, and even though he left the room because he needed breaks, Axeline felt it necessary to point out to ALJ Hoppenfeld that the claimant had been sitting during the hearing. As an initial matter, the “sit and squirm” test has been universally rejected. Moreover, if Axeline thought the claimant’s ability to sit at the hearing was relevant, then he should have asked the ALJ to inquire about the effects that sitting at the hearing would have on him the next day. Axeline failed to ask that question because he knew, and as the claimant testified afterwards, he would be in excessive pain and stuck at home the next day.

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Axeline, who testified that the claimant’ physical impairments would limit him to light work. The case law holds that the inability to perform very heavy, heavy, or medium work, and being limited to light work, constitute significant limitations of function under 12.05C. Therefore, ALJ Hoppenfeld should have immediately ruled that the claimant met 12.05C. However, just as she did in my prior cases, ALJ Hoppenfeld ignored the reliable treating evidence in favor of ME Jonas’ testimony.

In my prior case, Hoppenfeld accepted ME Jonas’ absurd testimony that fibromyalgia does not exist in order to deny the claimant’s SSD benefits. Here, ALJ Hoppenfeld accepted Jonas’ bizarre testimony regarding Dr. Papapetrou. As an initial matter, Jonas is unqualified to assess Dr. Papapetrou’s CPE. Jonas stated that he is a psychiatrist, not a psychologist, and admitted that he has never performed any psychological testing, including the tests performed in the CPE. Jonas also admitted that the tests used in the CPE are valid tests, including the IQ tests. However, ME Jonas said that he could not accept the IQ scores because Dr. Papapetrou did not state the tests were valid.

Jonas’ conclusion shows the depraved lengths he will go to assist an ALJ in denying benefits. On the one hand, Jonas assumes that the claimant’s IQ scores are not valid because Dr. Papapetrou did not say they were valid. On the other hand, Jonas did not assume that the claimant’s IQ scores are valid, even though Jonas admitted that Dr. Papapetrou did not say the IQ scores were invalid. Similarly, Jonas stated that he would not accept the CPE because Dr. Papapetrou did not state that the claimant was not inebriated. According to Jonas’ logic, the claimant has no left arm because Dr. Papapetrou failed to say he has one. Moreover, Jonas admitted that if the claimant were inebriated, then he would have expected Dr. Papapetrou to say so.

Because Jonas has a history of testifying that the only listing claimants meet is for substance abuse, as he did once again at yesterday’s hearing, I asked ALJ Hoppenfeld to admit into the record a letter from Dr. Patel, the claimant’s doctor, stating that alcohol has nothing to do with the claimant’s inability to work. ALJ Hoppenfeld refused to admit Dr. Patel’s letter into evidence. Hoppenfeld then claimed Dr. Patel’s letter was already admitted, but refused to identify the exhibit initially, and then stated it was Exhibit 13F. I immediately told Hoppenfeld that Dr. Patel’s letter was not in Exhibit 13F. Not surprisingly, ALJ Hoppenfeld and Jonas failed to explain how alcohol could have contributed to the claimant’s learning disorder or retardation, which was evident when he was 10 years old and failed to graduate beyond the fourth grade. The claimant submitted letters from a neighbor and former employer who that the claimant cannot read ort write.

Throughout the hearing, ALJ Hoppenfeld constantly interrupted my questioning of her expert witnesses whenever she recognized the answers would help the claimant’s case. Hoppenfeld coached the expert witnesses with leading questions, and even worse, she repeatedly testified for the experts to prevent them from giving answers that would help the claimant’s case. ALJ Hoppenfeld repeatedly refused to allow the experts to answer questions that she thought would help the claimant. EVERY time that Hoppenfeld refused to develop the record, I asked her to cite what rule or regulation she relied upon to prevent the expert from answering, and Hoppenfeld failed every single time to cite any authority for her rulings. When I said she was not above the law and had to comply with the Social Security rules and regulations her boilerplate non-response was that this was her hearing.

Hypocritically, Hoppenfeld claimed that I was improperly asking the claimant leading questions. I asked her to cite the authority that precluded me from doing so. Once again, Hoppenfeld was incapable to do so. She claimed that her 30 years as a trial lawyer was her authority. I told her that any lawyer would know that when dealing with a claimant with an IQ below 70, which ME Jonas testified should have resulted in a diagnosis of mental retardation, it was appropriate to ask leading questions. In other words, Hoppenfeld had no problem asking her experts leading questions, but refused to allow me to ask leading questions to the claimant despite his being diagnosed with a learning disorder and or mental retardation.

Despite ALJ Hoppenfeld’s interruptions, I did get ME Jonas to testify that he would accept the IQ scores from Dr. Papapetrou’s CPE if he explained (a) why he did not specifically state in the CPE that the test scores were valid, (b) why he did not say if the claimant was inebriated; and (c) why the diagnosis was learning disorder instead of mental retardation. I stated that I would have the claimant or his wife obtain those answers from Dr. Papapetrou, even though for the reasons stated above, Jonas’ professed need for that information is specious at best.

In short, Jonas knew that the CPE required finding the claimant disabled. Therefore, his solution was concocting fraudulent reasons for discrediting it, in order to require the claimant to attend a new consultative examination. In other words, if the evidence conclusively supports disability, throw it out. If Jonas truly believed that the CPE IQ scores could only be deemed reliable if Dr. Papapetrou had explained why he did not specifically state in the CPE that the test scores were valid or if the claimant were inebriated, and why Dr. Papapetrou’s diagnosis was learning disorder instead of mental retardation, then a simple letter or call to Dr. Papapetrou would solve that problem. However, since Hoppenfeld and Jonas know that Dr. Papapetrou would be able to explain away Jonas’ inane excuses they insist that the claimant start all over and see somebody else for testing in the hope that they will get results less favorable to the claimant.

The only reason Hoppenfeld refuses to seek information from Dr. Papapetrou to clarify his IQ scores is because she knows he will support the claimant’s disability. The rules and regulations require ALJ Hoppenfeld to contact Dr. Papapetrou if she believes there is any inconsistency that requires clarification or if there is a gap in the CPE report. The rules and regulations do not allow Hopenfeld to request a second opinion simply because she does not like the fact that the prior opinion requires a finding of disabled. Hoppenfeld cannot even claim that Dr. Papapetrou cannot be trusted because he is a biased treating source. Dr. Papapetrou works for VESID, a State agency just like the State agency that would send the claimant for a consultative exam.

ALJ Hoppenfeld’s use of Jennifer Dizon, the vocational expert (“VE”), was equally unprofessional and violative of the rules and regulations. Hoppenfeld would not allow me to ask hypothetical questions to the VE on the grounds that it was not based on medical evidence. This shows Hoppenfeld’s bias or utter incompetence. The very definition of a hypothetical question is that it is not based on a particular document or finding. In any case, my hypothetical was based upon Dr. Patel’s medical conclusions.

The VE identified three occupations from the Dictionary of Occupational Titles (“DOT”) that she claimed the claimant could do: 323.687-014 housekeeper, 729,687-010 electrical assembler, and 230.687-010 pamphlet distributor. Once again, Hoppenfeld continually interrupted my questioning, testified for the VE, and refused to let the VE answer questions, each time Hoppenfeld suspected the testimony would hurt her ability to deny the claimant’ application. Hoppenfeld’s gross failure to develop the record is another example of her anti-claimant bias, which is another one of the allegations in the class action filed against her.

The VE testified that the three occupations had a DOT language level of 1, which she said requires recognizing the meaning of 2,500 words, which was false testimony. The DOT actually states that a language level 1 requires the ability to recognize 2,500 two or three syllable words. Perhaps the VE’s serious mistake could be attributed to her thinking the distinction was unimportant. Although I find it hard to believe that a person responsible for assessing people’s ability to work would think that whether a person can recognize 2,500 words as opposed to 2,500 two and three syllable words to be unimportant. However, the VE’s testimony was outright deceptive. The VE failed to disclose that language level 1 also requires the ability to read at the rate of 95-120 words per minute. The claimant cannot read at all let alone 95 to 120 words a minute. The VE knew that, which explains why she omitted that highly critical fact. The VE also failed to note that language level 1 also requires the ability to compare similarities and differences between words and between series of numbers.

The VE’s description of the language requirements of the occupations gets even worse. She stated that a claimant at that level would have to be able to print simple sentences. What the DOT actually states is that level 1 requires the ability to print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. Once again, the VE’s omission of these highly probative requirements bespeaks the taint and unreliability of her testimony. Notably, electrical assembler requires language level 2, which is even more complicated than level 1.

Language 2 level requires a passive vocabulary of 5,000-6,000 words; the ability to read at rate of 190-215 words per minute, including adventure stories and comic books; looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation; and the ability to read instructions for assembling model cars and airplanes. As for writing, level 2 requires the ability to write compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs. Additionally, level 2 requires the ability to speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses. The claimant undeniably lacks those abilities too.

The VE’s testimony regarding math level 1 is just as reprehensible. Not having access to the DOT at the hearing, I also asked the VE what the math requirements were for level 1. The VE testified that level 1 required adding and subtracting. Once again, the VE, who stated that she was reading from the DOT, misstated the truth. According to the DOT, math level 1 requires adding and subtracting two-digit numbers, as opposed to leaving the impression that adding and subtracting single digit numbers was all that was required. Even more egregious, the VE intentionally omitted that math level 1 requires the ability to multiply and divide 10's and 100's by 2, 3, 4, 5. The VE purposely concealed that information because she recognized that it was at odds with the claimant’s ability to perform those tasks. Concrete evidence of the VE’s despicable testimony was her falsely testifying that the claimant said he performed measurements while working as a roofer. I stated that there was no such testimony, and then asked the claimant if he did any measuring at work, to which he said no.

The VE admitted that according to the DOT the claimant could not perform the three occupations if he were unable to read or write. However, the VE then testified that the claimant could do the housekeeper job and pamphlet distributor anyway. When I tried asking the VE to explain the basis for her conclusion that was contrary to the DOT, Hoppenfeld refused to allow the VE to answer, even though SSR 00-4p specifically requires that information. Hoppenfeld refused to allow me to cross examine the VE properly on that point because she knew the VE lacked any basis for her testimony that conflicted with the DOT. I asked the VE how many pamphlet distributors she had observed at work because I wanted to see the basis for her testimony that contradicted the DOT. The VE evasively said she had observed 500 pamphlet distributors at work. When I asked how many did she observe for a full 8 hour day to see if they required no reading or writing, Hoppenfeld told the VE not to answer, although the VE then admitted the answer was none, and that she had merely passed by those purported 500 pamphlet distributors at street corners.

I have lived in Manhattan for many years, and never saw that many pamphlet distributors, yet the VE somehow managed to see 500 of them in Rochester. More importantly, the VE’s claim that she knows a pamphlet distributor does not need to read and write because she passed them by on street corners is an insult to her profession, and demonstrates that when her opinion contradicts the DOT it is not reliable. Similarly, the VE testified that the claimant could work as an electrical assembler, contrary to the DOT, because that work did not require the ability read and write. However, when I asked how many electrical assemblers she observed at work in order to come to her conclusion which was at odds with the DOT she admitted that she had never done so.

Based upon Dr. Patel’s conclusion that the claimant could not stoop, kneel, or crouch, I asked the VE if a person with those limitations could do the three jobs that the she had identified. The VE said that she thought a person could. However, when I asked how she made that conclusion contrary to the DOT, the VE said she had no answer. In fact, because the VE admitted that she had no answer, ALJ Hoppenfeld said that she would hold the hearing open so the VE could provide answers.

I then asked the VE if the claimant lacked the ability to pay attention and concentrate, which is what Dr. Patel had concluded, could he perform any of the three occupations. The VE said yes because those occupations were SVP 2. However, when I asked where the DOT stated that an occupation with an SVP of 1 or 2 did not require the ability to pay attention or concentrate, once again, the VE was unable to state where the DOT said that.

ALJ Hoppenfeld precluded additional cross exam of the VE. The claimant testified that because of his hands he drops things. He showed the ALJ how his hand cramps up into a claw. The records reflect the claimant’s hand tremors, and he testified that Dr. Patel said he had arthritis in his hands. Dr. Patel concluded in report that the claimant is restricted from using his hands for handling, grasping, turning, and twisting objects, which the three occupations the VE identified require. Not surprisingly, the VE failed to address that point, and Hoppenfeld omitted those limitations, as well as many others, from the hypothetical questions she posed to the VE.

As you may surmise, the above represents merely the tip of the iceberg. Hoppenfeld’s actions yesterday were emblematic of the unfair way that she handles hearings. Her anti-claimant bias is transparent. She referred to the claimant’s testimony under oath as “claims,” indicating a predetermined decision not to accept his statements as credible. At the same time, Hoppenfeld readily accepted the testimony of Jonas regarding the CPE, even though he never did any IQ testing and is not a psychologist, and Hoppenfeld readily accepted the VE’s testimony, which is replete with errors, omissions, and inconsistencies.

In short, you have an illiterate 52 year man, who never went past the fourth grade, with a history of unskilled menial heavy work, who even Jonas admitted is mentally retarded or learning disabled, who went for help to VESID to try to work after he was no longer able to work as a roofer helper. ALJ Hoppenfeld went way out of her way to deprive the claimant a full and fair hearing by following her practice and pattern of unfair tactics. As usual, Hoppenfeld showed she was rejecting the opinion of the treating physician, Dr. Patel, in favor of non-examining sources. She showed that she would rely on ME Axeline not only to reject Dr. Patel’s findings and conclusions, but also the findings and conclusions of Dr. Gallo, who performed the consultative examination for Social Security. Hoppenfeld showed that she would use Jonas, who investigation could show was selected out of rotation, to reject the findings and conclusions of Dr. Papapetrou, who works for New York State, even though Jonas lacks the expertise to critique IQ and psychological testing.

Social Security should investigate all the experts that Hoppenfeld uses to see if she complies with the rotation policy. Hoppenfeld’s pervasive interruption of cross examination, testifying for expert witnesses, and refusing to develop the record by improperly ordering experts not to answer questions demonstrates a gross deprivation of a fair hearing. Simply going through the motions of holding a hearing is not the same as conducting a full and fair hearing.

If you believe that you ALJ Hoppenfeld treated you unfairly, then you can find out information to file a complaint with Social Security at http://www.ssa.gov/pubs/10071.html.

Rheumatoid Arthritis

Rheumatoid Arthritis (“RA”), which is an incurable form of inflammatory arthritis, is an autoimmune disease where the immune system attacks the body’s own tissues. As a result of the attacks, fluid builds up in the joints, causing joint pain and inflammation throughout the body. The pain and stiffness from RA can become disabling.

When applying for Social Security Disability (“SSD”) benefits, the most expeditious way to establish entitlement to benefits is to show that the claimant meets the criteria under “listing” 14.09. If the criteria of a “listing” are met then the applicant is presumed to be disabled, and no further medical or vocational development is required to approve SSD benefits.

Two ways to meet 14.09 is to demonstrate that the RA effects (a) at least one of the claimant’s major weight-bearing joints resulting in the inability to ambulate effectively, or (b) joints in each upper extremity resulting in the inability to perform fine and gross movements. Simply providing records showing a claimant has RA is insufficient to meet the listing because it does not show the functional effects of the disease.

I represent a 53 year old former salesperson with RA whose SSD application was approved today without ever being denied. I worked with the claimant’s rheumatologist to provide a letter to Social Security that explained why the claimant met listing 14.09. Without the rheumatologist’s listing opinion it is very unlikely that her SSD application would have been approved without a hearing.

SSD Overpayments

I am frequently retained after the Social Security Administration (the “SSA”) rules that a claimant is liable for an overpayment of Social Security Disability (“SSD”) insurance benefits. An overpayment is the difference between the amount the SSA paid the claimant and the amount to which the SSA subsequently alleges was actually due.

It seems that the SSA almost always assumes that there was in fact an overpayment, and instead focuses only on whether the claimant is entitled to have the overpayment waived. I received a decision from the Appeals Council today remanding the decision of the Administrative Law Judge (“ALJ”) on this very issue. The Appeals Council agreed that the issue was not whether the claimant qualified for waiver of the alleged SSD overpayment, but rather, whether there an overpayment in the first place.

The ALJ concluded that the SSA overpaid my client $1,501.40 in SSD benefits between July 1, 2009 to September 30, 2009 on the grounds that the claimant was “performing work activity.” The first step in the sequential evaluation is to determine whether the claimant was engaged insubstantial gainful activity (“SGA”). Whether or not the claimant performed work activity is irrelevant unless it constituted SGA. I argued that the ALJ never made any attempt to determine if the alleged work activity constituted SGA under any of the three SGA tests. The Appeals Council agreed and remanded the case.

Under all three SGA tests the claimant’s so-called work activity cannot be deemed to qualify as SGA. As a result, not only will the claimant be entitled to SSD benefits during the July 1, 2009 to September 30, 2009 time period, but she will also be entitled to benefits from October 1, 2009 through the present.

LTD Approved In Less Than A Month

Applying for benefits under a group long term disability (“LTD”) plan typically takes a fairly long time. Therefore, I was surprised when Unimerica Life Insurance of New York approved an LTD application for an elementary school teacher less than a month after I submitted it.

Along with the application forms, I provided a detailed vocational analysis specifying the physical demands required of an elementary school teacher. I then demonstrated how the medical forms that the claimant’s neurologist, physiatrist, and orthopedist completed showed how the claimant lacked the ability to perform the physical demands of the occupation. In addition, I submitted diagnostic MRI and EMG reports revealing numerous objective findings consistent with the treating doctors’ opinions.

Technically, the claimant was only supposed to file the LTD Plan application forms when applying. However, the additional physician and test reports made it unmistakably clear that the claimant lacked the ability to continue working, especially when those reports were examined in the context of the vocational data. Had I not supplemented the LTD Plan application forms with the additional medical records and vocational information, then I am sure that the claim would not have been approved as quickly.

Maximizing Disability Benefits

According to the Social Security Administration (“SSA”), a protective filing date is, “The date you first contact us about filing for benefits. It may be used to establish an earlier application date than when we receive your signed application.”

Social Security Disability (“SSD”) benefits are available after a full five month waiting period. When filing a Social Security Disability (“SSD”) application, it is possible to be awarded up to twelve months of retroactive benefits. As long as an application is filed within seventeen months of the disability onset date a claimant will not lose potential SSD benefits.

I represent a 40 year old truck driver with a knee replacement who became disabled more than 17 months before initially contacting me. I advised the claimant to contact the SSA for an appointment to file for SSD benefits in order to receive a protective filing date, which he did. I further advised the claimant to send a confirmatory letter to the SSA as proof of the contact because the SSA does not always send a letter to claimants for an appointment.

The claimant eventually retained me, and I filed an application for SSD benefits two months later. The claimant received a fully favorable decision today that found the claimant disabled as of the protective filing date. As a result, the claimant received two additional months of SSD benefits.

Mixed Connective Tissue Disease

I represent an industrial salesman from Oregon whose application for Social Security Disability (“SSD”) benefits was denied on June 16, 2011 by the State agency on the grounds that the claimant was expected to get better within 12 months. On that same date, I filed an on-the-record (“OTR”) request for a fully favorable decision, which Social Security approved on August 25, 2011.

The claimant was diagnosed with mixed connective tissue disease (“MCTD”). According to the Mayo Clinic, MCTD is an uncommon autoimmune disorder that causes overlapping features of primarily three connective tissue diseases — lupus, scleroderma and polymyositis, and it also may have features of rheumatoid arthritis.

I was able to avoid a hearing for the claimant by showing that he met a “listing” covering MCTD. Under Ninth Circuit law, if a claimant meets the criteria of listing 14.06, then the impairments are considered severe enough that they presumptively preclude any gainful work activity. I obtained a letter from the claimant’s doctor detailing how the claimant met the medical criteria that are listed in 14.06. The OTR then explained how the doctor’s finding and conclusions matched the listing’s criteria.

A medical opinion that a claimant meets a listing is the best type of evidence that can be used to establish entitlement to SSD benefits. Proving that a claimant meets a listing is the best argument to espouse on an OTR. Avoiding a hearing means the claimant need not deal with the stress of a hearing, improves the claimant’s cash flow, and can reduce the claimant’s attorney fee.

When To Amend The Disability Onset Date

Telling the Social Security Administration (“SSA”) that you want to change an application for Social Security Disability (“SSD”) benefits to reflect a later disability onset date can result in a faster approval, possibly without losing any benefts.

I represent a former plastics salesperson whose May 26, 2011 SSD application said she became disabled in August 2005, at which time she was 48 years old. The SSA denied the claimant’s application on August 4, 2011, and I received the claim file a week later. I then filed an on-the-record (“OTR”) appeal on August 14, 2011, which amended the claimant’s onset date from August 2005 to her 50th birthday in July 2007. The five month waiting period would be satisfied as of January 2008.

The SSA can pay SSD benefits up to 12 months before the month in which an application is filed. Thus, the earliest date when the claimant could potentially receive benefits was May 2010.

In order to qualify for SSD benefits, an applicant must establish disability before the “date last insured (DLI).” The claimant’s DLI was March 31, 2008, which was after her 50th birthday.

I filed the claimant’s OTR on August 14, 2011. The SSA approved and paid the SSD benefits within two weeks after the OTR was filed.

Under the circumstances applicable to the claimant’s case, the Medical – Vocational Rules made it easier for her to establish disability as of her 50th birthday. Without the amendment, it is likely that the OTR would not have been approved. Since the claimant’s SSD benefits could not be paid prior to May 2010, establishing disability as of July 2007 instead of August 2005 did not result in a decrease of benefits.

Right To Cross Examine Post Hearing Experts

I represent a 49 year old former pastry chef who had a hearing for Social Security Disability (“SSD”) benefits before Administrative Law Judge (“ALJ”) Ronald Waldman. The claimant’s treating orthopedist provided diagnostic tests and treatment records that supported his opinion that the claimant could not do any type of work. Moreover, under the Medical – Vocational rules, the claimant would have to be found disabled even if she could do sedentary work.

After the hearing, the ALJ sent interrogatories to a general surgeon named Dr. Thomas H. Weiss who has not practiced medicine for nearly twenty years. It was unclear why the ALJ did not pose the interrogatories to the treating orthopedist, especially since his opinion was well supported. Dr. Weiss made medical findings without ever examining the claimant, which were equivocal.

New York law holds that a claimant has a due process right to cross-examine an expert who issues a post-hearing report. Consequently, I advised the ALJ that if he intended to rely on Weiss’ report to deny SSD benefits, then the claimant would invoke her right to cross-examine the expert.

The ALJ issued a fully favorable decision today, which obviated the need to cross examine the expert. The ALJ gave the treating physician’s opinion more weight than the expert’s opinion on the grounds that it was more consistent with the record as a whole, which raises the question why the interrogatories were needed.

Although an ALJ may not ultimately rely on a post hearing expert’s opinion to deny SSD benefits, it is important to preserve the right to cross examine the expert in case the report is adverse or equivocal. Appeals Council reviews are not always thorough, and a supplemental hearing to cross examine the expert is needed in order to present a complete record for judicial review.

Commissioner’s Statement Is Offensive

Stephen Ohlemacher's article in today’s Newsday entitled “Soc. Sec. Disability In Peril” includes a quote from Social Security Commissioner Michael Astrue that is offensive to disability applicants. The article discusses how the Social Security Disability program is in financial trouble as aging baby boomers and laid off workers are filing large numbers of claims.

One would expect disability claims to increase as the large number of baby boomers approach retirement age since older workers are more likely to become unable to work compared to younger workers. Disability claims should also be anticipated from workers who have been laid off because many were allowed to work with special accommodations, especially older workers who had developed good will with their employers.

Instead of recognizing the legitimate reasons why more people need to apply for disability benefits under the present circumstances described above, Commissioner Astrue attributes the increase to “economic desperation” as laid off claimants “take a shot at disability.” Many baby boomers are applying because age has taken its toll on their ability to work, not because they are economically desperate. The greater number of older people, the greater number of expected disability claims. Moreover, assuming that a laid off worker “takes a shot at disability” out of economic desperation demonstrates a preconceived notion that the claimant is not applying due to inability to work, which violates the supposed non-adversarial process for evaluating disability claims.

Gilding the Lily

The Shakespearean derived phrase “gilding the lily“ means to make superfluous additions to what is already complete. I’ve been accused of gilding the lily by submitting evidence from multiple supporting treating sources when applying for disability benefits. Although it may be true that benefits might be approved based on support from a single physician, I’ve found that providing reports from additional medical sources expedites favorable decisions.

I represent a 50 year old construction worker whose Social Security Disability (“SSD”) benefits were approved in less than five months after he retained me. When the claimant came to me, he explained that he could not work because he had knee problems. However, after interviewing the claimant, I learned that he also had wrist and shoulder problems. I wound up filing records and reports for all three of the claimant's problems.

It is possible that the claimant’s SSD application may have been approved if he had relied solely on his knee problems as a basis for his disability. Nonetheless, experience has demonstrated that the chances of obtaining an approval increase substantially when presenting evidence of all impairments, even if only of secondary import in the mind of the claimant. In fact, the regulations specifically require that the combined effect of all of the claimant’s impairments be considered when evaluating the ability to work.

SSD Approved in 2.5 Months

Social Security is well known for taking a long time to decide if it should approve an application for Social Security Disability (“SSD”) benefits. Therefore, when it makes a rare decision quickly, the question is why?

I represent a former car salesman whose SSD application was approved in 2.5 months, which is significantly faster than normal. A car salesman is considered light work because it requires the individual to be on his feet most of the work day. There is no reported case where a court found a car salesman to have skills that would transfer to sedentary work.

Given the claimant’s age, he would have to be found disabled even if capable of sedentary work. This “Grid” situation is not unusual, and by itself does not explain why SSD benefits were approved in a little over two months. Two other factors may explain the rapid decision.

I submitted reports from the claimant’s internist regarding back problems, and pulmonologist regarding breathing problems, that showed the claimant lacked the ability to do even sedentary work. Establishing comorbid conditions that independently warrant a finding of disabled obviously presents a stronger case. I also explained the significance of the claimant’s 38 year work history as a car salesman, which is objective evidence of a good work ethic and credibility. The synergistic effect of the comorbid evidence and work history simply made it too difficult for the State agency to contest the application.

When to File for SSD

I am constantly being contacted by people who were led to believe that they needed to be disabled and out of work for a year before applying for Social Security Disability (“SSD”) benefits. The regulations actually state that you must have a condition that has lasted or can be expected to last for at least 12 months in a row.

I always advise potential claimants to file as soon as possible. The initial decision in the local offices usually takes about a half year. The worst thing that can happen is that the application could be denied for failing to meet the 12 month duration requirement, but that rationale would eventually disappear on appeal at the 12 month mark. Another possibility is a suspension.

I represent a 53 year old custodian whose application was approved today. I filed his SSD application in March, stating that he became disabled in January. In April, the disability determination services notified me that they were postponing reviewing the claimant’s SSD application on the grounds that more time had to pass to evaluate whether he met the 12 month duration requirement.

The end result is that the claimant’s application was approved 5 months after it was filed, and 8 months after he stopped working. Cash flow was particularly troublesome for the claimant so the relatively quick approval was important.

It is also possible that the 12 month duration requirement will not present a problem. I represent a carpenter whose SSD application was also approved today. He stopped working January 31, 2011, and I filed his application on February 3, 2011. His application was initially denied for his refusal to attend a consultative examination, not for failing to meet the duration requirement. I promptly filed an on-the-record request for a fully favorable decision, which was approved today. The end result here being that the claimant's application was approved about 7 months after it was filed.

Disability & Incontinence

A Social Security Disability (“SSD”) claimant with spina bifida asked me to represent him after his initial hearing with an Administrative Law Judge (“ALJ”). The claimant had received SSD in the past, but asked that it be stopped because he wanted to try working out of his house. A couple of years later, after surgery related to his spina bifida rendered him incontinent, the claimant stopped working and reapplied for SSD.

The ALJ had sent interrogatories to a medical expert, who stated the claimant could do sedentary work, even though the spina bifida and related surgery had left him incontinent. At the hearing I was able to show that the claimant’s condition was worse when he reapplied compared to when he had originally been approved for SSD. On cross exam, the medical expert testified that he did not review any evidence from the time of the claimant’s original application, and was unable to explain why he believed the claimant could work now, even though his condition was worse than when he had been approved for SSD previously.

Prior to the hearing, I provided the ALJ with a report from a vocational expert. Her report explained in detail why the claimant’s need for bathroom breaks and access rendered the claimant incapable of working. The ALJ agreed that the claimant’s incontinence significantly compromised his ability to work, and approved his SSD application.

Just as certain medical conditions require supporting reports from treating doctors, some diseases or injuries require supporting reports from vocational experts. The ALJ had asked a medical expert, but not a vocational expert, to testify at the claimant’s hearing. Even if the ALJ had rejected the vocational expert’s report, it would have provided very strong grounds for a reversal or remand on appeal.

Hoppenfeld Fibromyalgia Bias

On April 22, 2011, I discussed the class action lawsuit that accuses Administrative Law Judges (“ALJs”), including Marilyn P. Hoppenfeld, of bias against Social Security disability claimants. The New York Times article about the class action, and a copy of the class action complaint, can be found on my web page’s Resources tab.

Another disability matter that I have involving ALJ Hoppenfeld concerns a claimant whose disability is based upon fibromyalgia. The courts have told ALJs, including Hoppenfeld, that a medical opinion that a claimant is disabled by fibromyalgia cannot be denied for lack of objective evidence, yet that is exactly what Hoppenfeld did.

In addition to the class action bias allegations, the Regional office of Social Security is investigating charges that ALJ Hoppenfeld is biased against claimants whose applications are based upon fibromyalgia. If you or anyone else is aware of such an instance, I would appreciate learning about it. I would be happy to put you in touch with the Labor Relations Specialist at the Regional Office who is conducting the investigation.

On The Record Requests

If an application for Social Security Disability (“SSD”) benefits is denied by the State agency, then you can request a hearing with an administrative law judge. Government statistics show that it takes over a year before you get to have a hearing. That delay can be reduced significantly by submitting a request for a fully favorable decision on the record (“OTR”).

An OTR should summarize the medical and vocation evidence, and demonstrate why the Social Security rules and regulations show that a hearing is not needed. SSD benefits must be granted where a treating doctor’s opinion that a claimant cannot work is given controlling weight. In theory, only one doctor’s supporting opinion is required to get SSD benefits.

I represent a 40 year old former financial strategic planner with cervical radiculopathy and chronic fatigue syndrome (“CFS”), whose OTR was approved today. SSD benefits are frequently denied to applicants who are younger than 50 years old, especially prior to a hearing. One way to increase the chances of having an OTR granted is to submit disability opinions from multiple medical sources.

In this instance, I provided disability opinions from the claimant’s orthopedist, pain management specialist, CFS specialist, and physiatrist. The medical opinions provided corroborative evidence and showed that a contrary State agency opinion was inconsistent with the record as a whole. Without the additional supporting opinions, the OTR probably would have been denied, thereby requiring the claimant to wait for a hearing.

LTD Approved In Two Months

When you apply for group long term disability (“LTD”) at work you are supposed to get a decision in 45 days under a federal law known as ERISA. However, that is not usually the case, and almost invariably, the insurance company that typically acts as the claim administrator asks for additional time to make a decision. Nonetheless, I received an approval today from Prudential 45 days after filing an application for LTD benefits for a 53 year old woman who had worked for New York City.

Like many other LTD applications that I filed, I submitted supportive medical records and reports together with the LTD application forms. What made this application different? The answer appears to be that I submitted the claimant’s Notice of Award for Social Security Disability (“SSD”) benefits.

Most LTD plans deduct SSD and other disability benefits, such as workers compensation, from the LTD benefit. For some people that will completely offset the LTD benefit, and the entire amount of LTD benefits received will have to be repaid. My client’s SSD substantially reduced her monthly LTD benefits. Absent the SSD offset, it is likely that Prudential would have asked for additional time to review the application because its liability would have been significantly greater.