www.iwantmydisability.com

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.

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.

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.

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.

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.

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.

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.