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.