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EAJA Fees

Senior Judge Arthur Spatt awarded $10,868.60 in fees today under the Equal Access to Justice Act (“EAJA”) due to

Administrative Law Judge (“ALJ”) Iris Rothman’s unjustifiable conduct. ALJ Rothman denied the claimant’s application for Social Security Disability (“SSD”) benefits twice. Each time the Court and Appeals Council rejected ALJ Rothman’s decision.

At the claimant’s third hearing, ALJ Seymour Rayner approved the claimant’s SSD application. I then asked Judge Spatt to award attorney fees under EAJA. The SSA argued that I was not entitled to attorney fees following ALJ Rothman’s second hearing because ALJ Rayner had considered new evidence.

Judge Spatt rejected the SSA’s argument, holding that just because ALJ Rayner considered new evidence did not mean that ALJ Rothman’s conduct at the second hearing was reasonable. To the contrary, Judge Spatt ruled that ALJ Rothman acted unreasonably in refusing to consider a new report containing the opinion of the claimant’s treating doctor, which was necessitated after ALJ Rothman had lost the report containing the doctor’s original opinion.

Stroke

According to the National Stroke Association, a stroke or “brain attack” occurs when a blood clot that is blocking an artery or a blood vessel breaks, thereby interrupting blood flow to an area of the brain. The result is that brain cells begin to die and brain damage occurs. Typical stroke symptoms include numbness or weakness to one side of the body, confusion, difficulty speaking, vision loss, imbalance, and headache. If stroke symptoms become permanent they can be disabling.

I represent a 47 year old salesman from Florida who had to stop working because of a stroke. While it is frequently difficult to obtain disability benefits in stroke cases, the claimant’s disability application was just approved in only two months.

Like most stroke cases, there was little difficulty establishing that the claimant had experienced a stroke. The claimant lost vision in one eye, had balance problems, difficulty remembering things and words, and experienced weakness and some difficulty communicating. Unlike many stroke cases though, I was able to demonstrate how those symptoms concretely impacted the claimant’s ability to function.

The claimant developed a fear of falling because since his stroke he had actually fallen several times. This was not an irrational phobia but a legitimate response to an actual risk of significant danger. As a result of the claimant’s latest fall he broke several bones, and was hospitalized. His application was approved shortly after the hospital records were submitted.

The importance of the hospitalization was not so much that he broke some bones evidencing that he had sustained a bad fall, but as I explained, the fall demonstrated that he continued to experience significant and persistent motor loss or dysfunction. The claimant simply lacked the ability to ambulate safely on a regular basis. As usual, it is not enough merely to supply medical records indicating that a claimant suffers from a particular diagnosis, but rather, it is the impact that the diagnosis has on the individual’s ability to function that needs to be established.

New Jersey District Court Remand

New Jersey District Court Judge Bumb remanded the decision of Administrative Law Judge (“ALJ”) Andrew Weiss today for failing to apply Social Security Ruling (“SSR”) 83-20 properly. The ALJ had determined that the claimant became disabled due to his mental disorders in March 2007 because that is when he started seeing a psychologist. I argued that there was no evidence showing that the claimant’s condition became worse in March 2007, and there was evidence showing that he was disabled by January 2005.

Judge Bumb agreed that the ALJ failed to explain why the claimant’s testimony was credible after March 2007, but not before then. Judge Bumb also agreed that the ALJ erred in finding the claimant did not take psychotropic medications until 2006 because the records revealed that he started taking them in 2004. Perhaps most importantly, Judge Bumb agreed that the ALJ erred in requiring contemporaneous medical records to support an onset date.

By refusing to accept a partially favorable decision from the ALJ, the claimant now has the potential of receiving many additional months and thousands of dollars in disability benefits. When receiving a partially favorable decision you should ask your attorney how many additional months of benefits are at stake.

District Court Remand

I took over the case from another attorney of a 52 year old Salvadoran aircraft plater who speaks very little English and has no formal education. The ALJ rejected the opinions of the claimant’s doctors solely on the grounds that they were inconsistent and lacked supporting findings. I argued that if the ALJ believed that the doctors’ reports contained a conflict or ambiguity, then his duty to develop the administrative record required him to ask the treating doctor to explain the alleged inconsistency or missing information. I also argued that the ALJ improperly rejected the claimant’s testimony.

Today, Judge Denis Hurley agreed with my arguments, and ruled that the Social Security Administrative Law Judge (“ALJ”) failed (a) to explain his reasons for finding that the treating doctors’ opinions were not well-supported by acceptable clinical and laboratory diagnostic techniques or were inconsistent with substantial evidence; (b) to identify the inconsistencies between the treating doctors’ opinions and the other medical evidence in the record; (c) to consider what weight to give to the treating doctors’ opinions; (d) to do a function by function analysis of the claimant’s ability to work; and (e) to consider the claimant’s testimony regarding his symptoms.

Reviewing Judge Hurley’s decision makes clear that there were numerous things wrong with the ALJ’s analysis. If those errors had been pointed out to the Appeals Council, it is very possible that it would have remanded the case, which would have saved two years’ time. If an ALJ denies your Social Security Disability claim, make sure your attorney has the right experience for appealing your claim to the Appeals Council as well as federal court.

ALJ Hoppenfeld Overtly Acts Biased

Administrative Law Judge (“ALJ”) Marilyn Hoppenfeld denied a fibromyalgia claimant’s application for the second time. The first time the Appeals Council rejected Hoppenfeld’s denial because there was no medical evidence contradicting the opinion of the five treating doctors, including the treating rheumatologist, who supported finding her disabled. This time, Hoppenfeld relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application for lacking objective evidence, even though federal courts previously told Hoppenfeld that that she cannot reject the opinion of the physician treating the claimant’s fibromyalgia by “requir[ing] objective’ evidence for a disease that eludes such measurement, and that the opinions of two MEs who did not examine the claimant are not substantial evidence.”

Because Hoppenfeld claimed that there was no tape recording from the claimant’s remanded May 14, 2009 hearing, following the claimant’s the supplemental October 15, 2009 hearing, I requested a recording of that hearing, but was sent a copy of the claimant’s pre-remand January 10, 2008 hearing instead.

During the October 15, 2009 hearing, I stated on the record more than once that the claimant’s brother was waiting to testify. Hoppenfeld said there was not enough time that day for the brother’s testimony, or to cross examine the medical expert, but would schedule a supplemental hearing. One of the reasons why I wanted the hearing recording was to make sure that the recording clearly reflected the claimant’s invocation of her right to have a witness testify on her behalf and to cross examine an expert. Since I was not provided with a hearing recording, to ensure that Hoppenfeld could not claim that the claimant had not asserted her right for witness testimony and cross examination, I submitted a series of letters.

In response to a letter from Hoppenfeld dated November 2, 2009 that supposedly enclosed “Exhibit 27” for my review, I faxed and filed electronically a letter on November 7, 2009, where I asked Hoppenfeld when she was scheduling a hearing for the claimant’s brother to testify. I also advised Hoppenfeld that she had failed to enclose a copy of Exhibit 27F. Because I received no response, I reiterated my requests on November 17, 2009 by fax and electronic filing. Later that day, I received a response to my letter, but once again, while it acknowledged that Exhibit 27F was given to a medical expert, Hoppenfeld had failed to enclose a copy of that exhibit.

In response to interrogatories that Hoppenfeld sent a medical expert, in her letter dated December 11, 2009, Hoppenfeld stated:

You may also request a supplemental hearing at which you would have the opportunity to appear, testify, produce witnesses, and submit additional evidence and written or oral statements concerning the facts and law. If you request a supplemental hearing, I will grant the request unless I receive additional records that supports a fully favorable decision. In addition, you may request an opportunity to question witnesses, including the authors(s) of the enclosed report(s).

Immediately upon receipt of Hoppenfeld’s December 11, 2009 letter, by fax and electronic filing, I unambiguously stated:

Among other things, your letter states that I can request a supplemental hearing. I do request a supplemental hearing to cross examine Gerald Winkler, which I would prefer be scheduled at the same time that you schedule a time to take the testimony of the claimant’s brother.

Thus, not once, not twice, but three times I had now notified Hoppenfeld in writing, that I wanted a supplemental hearing to cross examine Gerald Winkler and to produce the claimant’s brother as a witness.

By letter faxed and filed electronically on April 21, 2010, I alerted Hoppenfeld that over half a year had elapsed since she held the claimant’s hearing, and agreed to schedule a supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler. This was the fourth time in writing that I had requested the supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler.

Finally, on May 20, 2010, by letter faxed and filed electronically, I submitted my fifth written request to schedule the supplemental hearing to take the testimony of the claimant’s brother and to cross examine Gerald Winkler.

Despite stating at the end of the hearing that she would schedule a supplemental hearing, and despite reiterating in writing that she would schedule the supplemental hearing to take the testimony of the claimant’s brother, and to cross examine Gerald Winkler, Hoppenfeld refused to do so, and instead issued her unfavorable decision. I cannot think of a more concrete example of an ALJ depriving a claimant of Due Process rights.

Hoppenfeld cannot claim that she is too dumb to understand her fundamental duty to develop the record because she admitted in writing that she had to schedule a supplemental hearing. Hoppenfeld cannot claim that she is incompetent and negligently failed to schedule a supplemental hearing because I invoked that right at the hearing, and then reminded her five times in writing that the claimant was invoking that right. Hoppenfeld’s deliberate, intentional, and gross misconduct clearly evinces her bias. Shockingly, Hoppenfeld’s failure to schedule the hearing is far from the most obvious evidence of bias in this particular case.

I have advised my client to file a complaint about Hoppenfeld’s pursuant to the “Administrative Law Judge/Public Alleged Misconduct Complaints System,” which is intended to track complaints about ALJ misconduct. The system will include information about bias complaints, investigations of complaints, and information about the claimants’ attorneys, which can facilitate collaborative action and evidence gathering. Any claimant or attorney filing bias complaint against ALJ Hoppenfeld should make clear that they want it incorporated into the Administrative Law Judge/Public Alleged Misconduct Complaints System.

Veterans

With Memorial Day approaching it is a good time to address veterans who apply for disability benefits. I represent a 48 year veteran who worked as a cook, and treated at the Veterans Administration (the “VA”), whose Social Security Disability (“SSD”) application was approved today.

Unlike many doctors, the VA maintains detailed typed treatment records. Since the VA also performs diagnostic testing, those reports are also contained in the VA’s files. Like most doctors though, the VA treatment notes are created to aid the doctors when treating their patients, and not to serve as evidence in connection with a disability claim. Consequently, the VA records do not usually contain any information about the patient’s ability to work or function.

I obtained functionality assessments from the claimant’s physicians at the VA. Because of the VA’s legible and detailed records, it was relatively easy for the VA doctors to explain the basis for their conclusions. The veteran treated with doctors outside the VA too, but their treatment records were less clear. Without ever being denied or needing to attend a hearing the veteran’s disability application was approved.

NYCERS & SSD

A claimant needs to show that she or he is no longer able to perform his or her job in order to qualify for a disability retirement pension under the New York City Employee Retirement System (“NYCERS”). By contrast, to qualify for Social Security Disability (“SSD”) benefits, a claimant usually needs to show that he or she is unable to perform any other work. While these are different standards, a favorable NYCERS decision could be helpful when applying for SSD benefits.

An SSD claimant must show that he or she cannot do past work before having to show that he or she cannot do any other work. If a claimant qualified for a NYCERS disability pension then logically that would satisfy the burden of proving an inability to do past work. It would be very difficult for the SSA to argue that it is in a better position to assess a claimant’s ability to work than that person’s actual employer, the City, and its medical board. Therefore, a favorable NYCERS decision shifts the question to whether the claimant can do any other work.

Under certain circumstances, a NYCERS decision that a claimant is entitled to a disability retirement pension effectively requires a finding that the claimant is entitled to SSD benefits. For example, SSD claimants who are over 50, performed non-sedentary work for the last 15 years, and lack transferable skills, are entitled to SSD benefits. Today I received approval of SSD benefits without a hearing for a 56 year old physician, just two weeks after submitting his NYCERS decision. The SSA agreed that the claimant could not perform his past work, had no skills that are transferable to sedentary work, and therefore concluded that the “vocational-medical rules” required that he be found disabled.

While a NYCERS decision is not binding on Social Security, it is persuasive, and can expedite a favorable decision.