Rare Remand Approval After a Decade

 A decade is defined as a period of ten years. Although this is a considerable length of time, it can feel especially prolonged for individuals who have been unable to work due to significant medical conditions and have had no income during this period. No dedicated worker anticipates experiencing such circumstances; however, these situations often arise beyond their control due to unforeseen health challenges.

We represent a sixty-year-old former NYPD police lieutenant from Massapequa, NY, who suffers from fibromyalgia, carpal tunnel syndrome, and pain and fatigue in her back, neck, and shoulder.  She worked 27 years for the NYPD.  She has been unable to work at any job since July 2009 due to her medical conditions.  She had hoped to return to work, but her condition never improved, even though she had surgery, physical therapy, medication regiments, and other medical modalities including injections and steroids.

On March 27, 2015, we applied for Social Security Disability (“SSD”) benefits, alleging a disability beginning on November 28, 2010.  The claimant has had strong supporting objective medical evidence from her treating neurologist, primary care doctor and physiatrist from the initial application.  After her claim was denied on September 5, 2015, we requested an administrative hearing.

On September 5, 2017, Administrative Law Judge (“ALJ”) Andrew Weiss held a hearing.  ALJ Weiss had two witnesses testify, Amy Leopold, a vocational expert, and Steven Golub, M.D., a medical expert.  Our client testified as well, with ALJ Weiss hounding her with every answer she gave.  We were horrified at the way he conducted himself during the hearing.

On October 25, 2017, ALJ Weiss denied our client’s claim without any substantial evidence for doing so.  He gave little weight to our client’s treating doctors, instead playing doctor and forming his own conclusions.  We appealed the case to the Appeals Council (“AC”) and submitted additional supporting medical evidence.  The AC not only upheld the ALJ’s denial on September 10, 2018, but declared that our additional evidence would not change their opinion and did not even consider the evidence.

We filed a lawsuit in Federal Court.  On November 20, 2020, Federal Court district Judge Joan M. Azrack remanded the case back to ALJ Weiss.  She found numerous, serious flaws in ALJ Weiss’s analysis of our client’s case beyond giving our client’s treating providers little weight.   In her decision, she pointed out that the ALJ relied on incorrect dates at multiple points in his analysis of the claim and referred to irrelevant periods of time.  She even stated “Additionally, the Commissioner concedes that the ALJ “misunderstood or mischaracterized” the opinion of the medical expert, Dr. Golub…”.

Our client had to wait an additional nine months from Judge Azrack’s decision to have a second hearing with ALJ Weiss.  Incredibly, ALJ Weiss repeated the exact same errors in this decision that Judge Azrack had asked him to correct, and on September 2, 2021, he again, denied our client’s case, claiming that our client had the residual capacity to perform the full range of light work after previously finding she could only perform sedentary work.  We appealed the decision again to the AC, and on February 23, 2023, eighteen months after ALJ Weiss’s second denial, the AC “found no reason under our rules to assume jurisdiction”  In other words, they upheld ALJ Weiss’s second denial.

We immediately filed another appeal in Federal Court where the case was assigned to Honorable Unites States District Judge Gary R. Brown.  In a decision dated January 10, 2024, Judge Brown criticized ALJ Weiss for repeating the same errors as he did in his first denial, and for his blatant mishandling of the medical expert testimony.  Judge Brown concluded that ALJ Weiss based his decision on “non-existent” opinions  from “non-existent doctors.”  Judge Brown reprimanded ALJ Weiss for not developing the record and remanded the case back to be heard by a different ALJ.

Thirteen months after Judge Brown’s remand, our client’s third hearing was heard on February 11, 2025, by ALJ Alan Berkowitz,  ALJ Berkowitz denied the claim on February 28, 2025, concluding that the claimant was able to perform light work by repeating the same errors that ALJ Weiss had committed.

Bypassing the AC, we appealed the claim directly to Federal Court.  Once again, the case was assigned to Judge Brown.  The attorneys representing the Social Security Administration (“SSA”) were afraid to defend ALJ Berkowitz’s decision.   In an extremely rare decision, Judge Brown accepted the SSA’s stipulation to have the AC issue a fully favorable decision, concluding that our client was entitled to received SSD benefitss stipulation to have the AC issue a fully favorable decision, concluding that our client was entitled to received SSD benefits.