Federal Court Remand Again

In probably the most scathing Social Security decision that I have ever read, U.S. District Court Judge Brown remanded our client’s case, and ordered that it be assigned to a new Administrative Law Judge (“ALJ”).  The full opinion can be downloaded from the Court Decisions drop down menu on my website’s Resources tab.

This is the second time that the claimant’s case has been remanded.  The first time, U.S. District Judge Azrack remanded it.  In that first lawsuit, Judge Brown said that Social Security was “ably represented by an Assistant United States Attorney,” because he conceded that “ALJ Weiss’ decision was indefensible.”

Judge Brown found that ALJ Weiss essentially repeated the same errors of law and added some further problems.  Regarding the vocational evidence, Judge Brown determined that ALJ Weiss: “gravely misstate[d] the record; ”ignored the testimony he elicited and determined—based on illusory findings—that the plaintiff could” work; and “fatuously” added the claimant could climb ladders.

Regarding the medical evidence, Judge Brown stated that “blatant mishandling of vocational expert information pales in comparison to ALJ Weiss’s failure to consider the Court’s directives in connection with medical expert testimony.”  Specifically, Judge Brown stated that, “Undeterred by the concession of error by the Commissioner and Judge Azrack’s express findings, ALJ Weiss, once again, bases his determination in some measure on the non-existent opinion provided by the apparently non-existent (in this case) Dr. Golub.”  Judge Brown added that ALJ Weiss, “through thinly-veiled machinations,” disregarded the claimant’s evidence.

Judge Brown also excoriated the legal representation provided by Social Security’s Office of the General Counsel (the “OGC”):

“The slapdash nature of the review provided by ALJ Weiss—in which he misidentified the purportedly critical medical expert witness and continued to rely on that “opinion” despite Judge Azrack’s rejection of the same—is echoed in the quality of the representation of the Commissioner on this appeal. For example, in its papers, counsel for the Commissioner repeatedly uses the wrong pronouns to refer to the plaintiff. Such scrivener’s errors could be simple mistakes, but may also reflect a careless, cut-and-paste creation of filings.”

Judge Brown then added:

“What’s more troubling, however, is the failure of counsel to exercise reasoned discretion in this case. During the first review of this case before Judge Azrack, the Commissioner was represented by an Assistant U.S. Attorney for this district, who exercised the good sense and judgment to concede error as to ALJ Weiss’s mistakes. Here, the record is inarguably worse, as rather than correct the errors identified by Judge Azrack, ALJ Weiss perpetuated and compounded the mistakes. And yet, substitute counsel for the Commissioner, a cross-designated agency attorney, refused to acknowledge any error.  Instead, in the filings, the Commissioner has the temerity to request that this Court conduct ‘a searching review of the record’ to correct the “the absence of an express discussion by the ALJ” of relevant factors.”

After attacking the particular OGC attorney who defended Social security in this case, Judge Brown criticized the quality of OGC representation in general:

“This Court has observed that, in at least certain instances, cross-designated agency counsel have repeatedly and unapologetically taken indefensible positions in social security disability cases, even in the face of judicial criticism.”

We have been representing the claimant for over a decade, and will continue to do so.   We have maintained from the day that we filed her application that she should be approved for SSD benefits.  We have no doubt that we will be successful.