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SSA Prehearing

It typically takes the Social Security Administration (the “SSA”) over a year to schedule a hearing with an Administrative Law Judge (“ALJ”) after a disability claim has been denied. However, there is a regulation that allows an attorney advisor to approve a disability claim without having to wait for a hearing with an ALJ. The regulation, 20 C.F.R. § 404.942, was due to expire August 10, 2011, but earlier this month the SSA extended the program to August 13, 2013.

A 49 year old teleconference specialist retained me after his disability application was denied last February. On March 4, 2011, I received a copy of the claim file after the local Social Security office transferred the case to the Jericho hearing office. On April 1, 2011, I submitted a request for a fully favorable decision on-the-record (“OTR”). Today, I received a fully favorable decision today from an attorney advisor.

By using the prehearing process with the attorney advisor, the claimant’s application was approved in two months instead of having to wait over a year just to receive a hearing with an ALJ. The expedited receipt of benefits not only helped the claimant’s cash flow, but also resulted in his paying a smaller attorney fee.

Using the prehearing process with the attorney advisors at the Queens hearing office is even more important. As discussed in the New York Times and in my prior blog entries, a class action was brought accusing Queens ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss, who have low approval rates, with bias against claimants (the “Queens Five”). Not only can an attorney advisor expedite the processing of a disability claim in Queens, it can also avoid having to deal with the Queens Five.

Disability Redefined

I brought an action against Guardian Life Insurance of America seeking long term disability (“LTD”) benefits on behalf of a woman with rheumatoid arthritis, fibromyalgia, and chronic fatigue syndrome. Guardian agreed to reinstate my client’s LTD benefits. What made this case somewhat unusual is how Guardian’s policy defined disability.

Like most group LTD plans and policies, the Guardian policy defined disability for the first 24 months as being unable to perform your own occupation. However, while most LTD plans define disability as being unable to perform any other occupation thereafter, the Guardian policy defined disability as being unable to perform at least two of six activities of living (“ADLs”).

The significance of the Guardian definition is that after the own occupation period it placed more emphasis on vocational expertise than usual. Whereas an LTD claim typically revolves around a battle of medical experts, here the focus centered on the findings and opinions of vocational experts. I have no doubt that Guardian would not have reinstated my client’s benefits if she had not retained a vocational expert to rebut the opinions of Guardian’s vocational expert.

The main issue in every LTD case is what does the medical and vocational evidence provide. Unfortunately, I have found that the vocational aspects of LTD claims are frequently given too little attention or are overlooked altogether. That simply cannot be the case in any instance where an LTD plan or policy defines disability based on ability to perform ADLs.

Consultative Examinations

If you apply for Social Security Disability (“SSD”) benefits in the New York metropolitan area, you will probably be sent to a doctor from Industrial Medicine Associates for a consultative examination (“CE”). Although the regulations actually provide very limited circumstances when a CE is appropriate, Social Security requires them in the vast majority of cases. CE’s are a single exam, and as the courts have ruled, provide opinions that are vague.

A CE’s opinion is usually unreliable compared to a treating doctor’s opinion. A CE frequently takes insufficient time to perform an adequate exam. Many claimants have testified that their CE lasted less than five minutes, and one examiner was even removed from CE eligibility after admitting he lacked the time to perform valid exams.

I represent a former dry wall apprentice, janitor-custodian, and tow truck operator whose on-the-record request for a fully favorable decision (“OTR”) was approved today by an Attorney Advisor. In granting the OTR, the Attorney Advisor explained that he gave less weight to the CE’s opinion because it was based on only one exam, and was vague.

The five Queens Administrative Law Judges (the “Queens Five”) who are the subject of the class action alleging that they are biased against claimants, constantly deny claims by elevating the opinions of CEs over treating physicians. If an Attorney Advisor understands that it is improper to give greater weight to a CE than a treating physician, then shouldn’t the Queens Five be able to understand that too, especially since their decisions have been rejected by federal court judges for that very reason?

Evidence of Hoppenfeld Bias

Recent blog entries have discussed the class action lawsuit that was filed earlier this month that accuses Administrative Law Judges (“ALJs”) Marilyn P. Hoppenfeld, David Nisnewtz, Michael D. Cofresi, Seymour Fier, and Hazel C. Strauss (the “Queens Five”) of bias against disability claimants. The New York Times first reported news of the class action. In the Resources section of my website, iwantmydisability.com, a copy of the New York Times article can be viewed, and a copy of the class action complaint that was filed in federal court can be downloaded.

A common tactic the Queens Five use to deny disability claims is using “medical experts” to testify at hearings. These doctors only review the records of claimants; they never examine the claimants. The Queens Five deny disability claims by accepting the medical experts’ opinions, who testify claimants can work, in favor of the treating doctors’ opinions, who conclude the claimants cannot work.

When I attend hearings at the neighboring hearing offices in Jericho and Brooklyn, it is the exception if the ALJs use medical experts. The opposite is true when I appear in Queens. In fact, I had one case recently where ALJ Nisnewitz required three medical experts as well as a vocational expert to testify. However, ALJ Hoppenfeld just provided an even more interesting example of how medical experts are misused.

During a hearing a couple of months ago, a claimant asked for an adjournment so that she could retain an attorney. Hoppenfeld had scheduled the original hearing without any type of expert. However, without any explanation, after learning that the claimant retained me, Hoppenfeld suddenly saw a need for, not one, but two medical experts. Additionally, Hoppenfeld also suddenly found a need for a vocational expert to testify. Nothing changed after the claimant’s hearing. The only thing that is different is that Hoppenfeld now knows that I am representing the claimant.

When Hoppenfeld was holding a hearing with a pro se claimant, she apparently was not worried about denying the claim even though the evidence would not support that decision. However, now that Hoppenfeld knows an attorney will be present, it seems that she recognizes that she has to concoct evidence through medical and vocational expert testimony to deny the claimant’s application.

ALJ Nisnewitz Rejected Again

Another U.S. District Court Judge, Denis Hurley, has rejected the decision of Administrative Law Judge (“ALJ”) David Nisnewitz that denied Social Security Disability benefits. In Day v. Astrue, once again, ALJ Nisnewitz relied upon the opinion of a non-examining medical expert (“ME”) to deny the claimant’s application, even though federal court judges have previously told the ALJ 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, yet he insists on repeating the same mistake. What possible excuse could ALJ Nisnewitz offer for repeating the same errors over and over?

The American Heritage Dictionary defines “bias” as a preference that inhibits impartial judgment. Since ALJ Nisnewitz has a history of repeatedly making the same mistakes, it is logical to conclude that his preference for denying disability claims inhibits his impartial judgment.

In my September 29, 2009 blog entry, I wrote, “It is unlikely that anything will be done about biased ALJs because the courts rely upon the SSA to investigate such matters, and in my experience the SSA evades that responsibility.” As noted in my recent blog entries, a class action lawsuit was filed this month accusing ALJ Nisnewtz and ALJs Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”) of bias against claimants. As a result of the class action, the Social Security Administration will not be able to evade its responsibility for investigating the bias of the Queens Five.

ALJ Bias Class Action

Last Wednesday, I wrote about the class action lawsuit filed against Administrative Law Judges (“ALJs”) David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss (the “Queens Five”). If you are interested in the details of that lawsuit, I have added a link under my website’s Resources tab so you can read the actual complaint that was filed in court.

It should be noted that the lawsuit excludes three other ALJs in Queens hearing office: Margaret Pecoraro, Sol Wieselthier and Gal Lahat. There is a consensus that none of these three ALJs have exhibited the pattern and practice of anti-claimant bias that the Queens Five have demonstrated.

One of the goals of the class action lawsuit is to annul the decisions of the Queens Five that denied claims of disability claimants, and to provide new hearings before ALJs other than the Queens Five. If your disability claim has been denied in whole or part by one of the Queens Five, then you should consider contacting the attorneys representing the plaintiffs to ensure your inclusion in the potential class.

Working And SSD

After your Social Security Disability (“SSD”) application is approved you might be able to work without losing your benefits. A trial work period (“TWP”) allows you to test your ability to work for at least nine months without losing benefits, regardless of how much you earn, as long as your condition has not improved.

The first 36 months after the TWP ends is the re-entitlement period, during which SSD benefits can be reinstated without filing for a new period of disability. You can receive full SSD benefits for two additional months, the grace period, regardless of how much you earn.

The Appeals Council reviews SSD claims that Administrative Law Judges have denied. The Appeals Council rarely approves SSD claims, and Appeals Council allowances comprise only 0.1% of all approvals. Today, I received an Appeals Council approval for a 52 year old former youth coordinator, who had received a partially favorable decision.

The claimant returned to work for eleven months after he stopped working due to neck, knee, and back problems. The Appeals Council found that the claimant’s medical condition had not improved during those eleven months, even though he had resumed working. After applying the nine month TWP and two month grace period the Appeals Council ruled that there would be no break in the claimant’s SSD benefits.

ALJ Bias In Queens

I have addressed the issue of Administrative Law Judges’ (“ALJs”) bias in the Queens Social Security hearing office on several occasions. The Social Security Administration (“SSA”) even implied that my raising the issue of ALJ bias in my blog was untrue and disparaging. However, an article published in today’s New York Times validates my opinion.

In “Suit Alleges Bias in Disability Denials by Queens Judges,” Sam Dolnick wrote that the Queens hearing office, “is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits.” The article cites statistics and comments from the same sources as my blog entries to demonstrate the aberrantly high denial rate for ALJs David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss.

Jim Walden is the attorney bringing the class action against the ALJs. The lawsuit seeks to bar the five ALJs from hearing any more claims, and to annul all their decisions since 2005 to deny benefits. My blog entries have asked how is it possible that Queens ALJs repeatedly make the same errors. Likewise, Mr. Walden said that the Queens ALJs “make the same legal and factual errors again and again.” Succinctly, Mr. Walden said that, “It is routine and systemic, and it shows you the fix is in.”

Federal Court Decision

I was retained to file an action in federal court seeking Social Security Disability (“SSD”) benefits that had been denied by Administrative Law Judge (“ALJ”) Robin Arzt. Today, Magistrate Judge (“MJ”) Ronald Ellis recommended that the ALJ’s decision be reversed, and remanded solely for a calculation of SSD benefits. The MJ’s decision is somewhat unusual since a majority of SSD cases are denied, and of those granted, most remand for another hearing before the same ALJ who heard the claim previously.

The claimant’s doctors said the claimant could not do sedentary work. However, ALJ Arzt rejected their opinions’ on the grounds that they supposedly were inconsistent with their clinical notes. MJ Ellis ruled that “it is well-settled that rejecting the opinion of a treating physician solely based on internal inconsistencies is error.” MJ Ellis noted that the treating doctors’ opinions were not contradicted by any other doctor, and that the ALJ had simply substituted her opinion for that of competent medical evidence.

MJ Ellis said that in the absence of contradictory medical evidence, there was no reason to remand the case for another hearing, especially since the claimant had filed for SSD benefits over six years ago. When looking to retain an attorney to handle your SSD case, ask for their experience litigating SSD cases. Understanding the issues that are important in federal court can help secure SSD benefits when the application is pending at Social Security, which can result in benefits being awarded years earlier.

ALJ Strauss Rejected Again

This is a follow up to my March 20, 2011 post entitled “ALJ Strauss Reversed Again, which has become a series of posts discussing how the federal courts are continually reversing the Social Security Disability (“SSD”) decisions of Administrative Law Judge (“ALJ”) Hazel Strauss. The decisions of U.S. district court judges reveal Strauss’ pattern of denying SSD claims by failing to comply with applicable rules and regulations.

Caira v. Astrue, 2011 WL 1326607 (E.D.N.Y. March 31. 2011), is the latest reported decision involving ALJ Strauss. Consistent with Strauss’ pattern of improperly denying SSD claims, in Caira, U.S. District Court Judge Raymond Dearie commented that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.” Judge Dearie seems to imply that Strauss did not reach her erroneous decision as a result of a simple mistake. Judge Dearie stated that Strauss’ rationale for her erroneous decision was a “mystery,” and that she “simply declared, without any analysis, that she gave ‘significant weight’ to the opinion of [the] consulting examiner,” and the State agency’s non-examining doctor. Judge Dearie ruled that Strauss “accepts these doctors’ bald conclusions despite substantial contemporaneous and contradictory evidence in the record.”

Judge Dearie also criticized Strauss’ slanted selectivity. Specifically, Judge Dearie found that Strauss “provided no basis for choosing one account over the other;” failed to incorporate the relevant facts into her analyses; “jumped to conclusions that were not adequately supported by the consultants reports;” and “credited only the sliver of [the treating doctor’s] written opinion which suits a finding that the claimant is not disabled, but ignored the vast majority of the opinion counseling otherwise.” Therefore, Judge Dearie concluded that, “At best, therefore, ‘the ALJ reached a mistaken conclusion.”

Judge Dearie also found that Strauss’ reasons for rejecting the claimant’s credibility in Caira to be defective. Specifically, Judge Dearie found that Strauss’ “contentions are puzzling in light of the extensive documented objective evidence of the claimant’s disability.” Judge Dearie added that Strauss mischaracterized and overstated the claimant’s daily activities, which did not “even minimally” support an ability to work. To the contrary, Judge Dearie determined that, “There is not a hint of evidence in this case of fraud or malingering, and persuasive evidence exists of disability.”

Perhaps Judge Dearie is finally fed up with Strauss’ transparently wrong decisions. With seeming frustration with Strauss’ decision in Ciara, Judge Dearie refused to subject the claimant to another hearing before ALJ Strauss. Using harsh language for a federal district court judge, Judge Dearie held:

The Court will not sanction such a pointless exercise when proper application of the law to the existing record permits a single conclusion: that claimant is disabled and entitled to benefits.

A federal court has now explicitly announced that it is “pointless” to require a claimant to continue through the appeal process for a Strauss decision. At what point does the Social Security Administration have an obligation to pay attention to what the federal courts are saying about Strauss’ decisions? What point is there to wasting judicial and Administration resources by requiring claimants to appeal Judge Strauss’ decisions that follow her pattern of improperly rejecting and discrediting the opinions of treating physicians and claimants’ credibility?

Seven Year Wait Over

I was asked by another attorney to take over the Social Security Disability (“SSD”) case of a 52 year old Salvadoran aircraft plater who speaks very little English and has no formal education. The U.S. District Court granted my summary judgment motion, and remanded the case back to Administrative Law Judge (“ALJ”) Seymour Rayner.

The claimant had applied for SSD benefits in 2004, and had treated with various specialists for his lumbar radiculopathy since that time. Eventually, the claimant continued his treatment with his internist only when it was determined that there was little else his other doctors could do to improve his condition.

At the remanded hearing, among other things, I pointed out that the ALJ had previously been under the mistaken impression that the claimant’s internist was a chiropractor, which resulted in his opinion being given less weight. This time, the ALJ gave great weight to the internist’s opinion because he had been treating the claimant since 2004. Today I received a fully favorable decision from ALJ Rayner.

It is possible that had the mistake been brought to the ALJ’s attention upon reviewing the original decision, then the ALJ may have been persuaded to conduct a supplemental hearing to correct the error. As it stands, the claimant had to wait nearly three years for a decision from (a) the Appeals Council, which was a denial and the point at which I took over the case, and (b) federal court, which remanded the decision.