Administrative Law Judge (“ALJ”) Seymour Fier is one of the five ALJ’s who is being sued for anti-claimant bias in the Bailey v. Astrue class action, Case No. 11-CV-1788 (CBA)(RLM). I represent a 58 year old utility worker whose Social Security Disability (“SSD”) benefits were denied by ALJ Fier on the grounds that the claimant was working. ALJ Fier knew that his decision was completely devoid of merit, but denied the SSD benefits anyway
Fier claimed that the claimant was not disabled because he worked as a proctor in 2007 and 2008. However, Fier knew that the claimant earned a total of $341.12 in 2007 and $536.76 in 2008. ALJ Fier, who has conducted thousands of hearings, also knew that for the work to qualify as substantial gainful activity (“SGA”), the claimant had to earn at least $900 and $940 a month for 2007 and 2008 respectively.
There is no rationale explanation for denying benefits on the grounds that the claimant was performing SGA, when the claimant’s total annual earnings did not even meet the monthly amount needed to constitute SGA. The claimant had a new hearing before another ALJ on Wednesday, and a fully favorable decision was issued today. Unfortunately, due to ALJ Fier’s anti-claimant bias, my client will have endured a nearly two year delay in receiving his past due SSD benefits.
Adjudicating disability claims frequently boils down to determining how much weight to provide to the opinions in the medical record. I represent a 59 year old truck driver with a compression fracture in his lumbar spine whose disability application was approved after highlighting the credentials of the two treating specialists.
The first treating physician is a spine specialist. I pointed out that he was graduated from a prestigious medical school, and then completed his is residency and fellowship in orthopaedic surgery and neurosurgical spine surgery. I also noted that the spine specialist currently teaches orthopedics at a prestigious medical school.
The other treating physician is a rheumatologist who has been listed in Newsday, New York Magazine, and the Castle Connolly guides as one of the New York areas’ best Rheumatologists. I commented that he has been Chief of Rheumatology at Long Island Jewish Medical Center; teaches at local medical schools; and was also graduated and conducted post-graduate work at prestigious medical schools.
Both treating doctors provided reports supporting the claimant’s disability. However, disability claim adjudicators do not always accept the opinions of claimants’ doctors. In light of the claimant’s back impairment, and his doctors’ credentials, it would have been difficult to justify rejecting the treating doctors’ opinions. The claimant’s application was approved because his doctors’ opinions were deemed “more consistent with the record as a whole.”
Highlighting the treating physicians’ credentials should usually be done, especially since the credentials of the doctors hired by insurance companies or government agencies are rarely as good.
The importance of a Medical Source Statement (“MSS”) cannot be overemphasized in disability claims. An MSS summarizes the doctor’s medical findings and conclusions, including an opinion about the claimant’s functional abilities. In the absence of an MSS, the claims adjudicator frequently denies disability benefits on the grounds that there is no evidence regarding the severity of the claimant’s medical condition.
I represent a 22 year old who had worked delivering packages and as a fry cook, who injured his back, neck, and knee in a car accident. His application for Social Security Disability (“SSD”) benefits was approved without a hearing based on the MSS of the claimant’s pain management specialist. The SSD application was originally denied, even though all of the pain management specialist’s treatment records and diagnostic tests had been submitted, because the claimant’s condition supposedly was not severe enough to keep him from working.
On appeal, the claimant was finally able to obtain the pain management specialist’s MSS. The Administrative Law Judge approved SSD benefits without a hearing on the grounds that the claimant was limited to sitting or standing/walking, for two hours during an eight hour work day. Those functional limitations came from the MSS.
When applying for disability benefits, don’t forget the podiatrist. I just had another disability application approved today because of a claimant’s podiatrist, which has become a fairly regular occurrence.
Every job requires being on one’s feet to some degree. The United States Department of Labor published the Dictionary of Occupational Titles (the “DOT”). For each occupation, the DOT provides the number of hours of standing/walking during an 8 hour day that is required. Most claim adjudicators accept the DOT.
I represent a 60 year electrician who said he could no longer work due to a psychological condition. After spending a while interviewing the claimant, I learned that he also had been seeing a podiatrist for an arthritic foot. While the arthritis did not require any assistive device to ambulate, the podiatrist limited the claimant to standing and walking for less than 2 hours during an 8 hour work day.
According to the DOT, an electrician must be on his feet for at least 6 hours a work day. The claimant was found disabled due to his foot problem, not his psychological one, because he could not perform his past work.
The Social Security rules and regulations generally require that greater weight be given to treating doctors than to doctors who consult for Social Security. However, in practice, both the State agency, that makes the initial medical decision, and many Administrative Law Judges (“ALJs”), ignore the opinions of treating doctors in favor of the Social Security doctors. One way to expedite obtaining a favorable determination is by retaining a doctor who also works for Social Security.
I took over the case of a 48 year old computer supervisor from another attorney. The claimant had stopped working in 2005, and the ALJ scheduled a supplemental hearing so a psychologist could testify as a medical expert (“ME”). Prior to the supplemental hearing, I arranged for a psychologist who also works for Social Security to prepare a report explaining the basis for the claimant’s onset date, which appeared to be the primary reason for the supplemental hearing.
Shortly before the hearing, I was notified that the application was being approved. I received a fully favorable decision today that found the claimant became disabled as of the 2005 onset date. The decision focused on the the report of psychologist, who sometimes provides expert testimony and medical reviews for Social Security, regarding the onset of the claimant’s disability. It seems unlikely that the ALJ would have canceled the supplemental hearing if the onset explanation had come from a doctor who did not also work for Social Security.
Hypothetically, when an elderly Administrative Law Judge (the “ALJ”) who has conducted thousands of hearings fails to follow one of the most rudimentary procedural rules that is designed to preserve a disability claimant’s right to a fair hearing, the ostensible motivation for the failure can reasonably only be attributed to dementia or bias. Regardless of whether an ALJ’s failure to comply with a fundamental rule meant to ensure a fair hearing was an accident due to lack of mental capacity or a deliberately calculated attempt to deprive the claimant of a fair hearing, the ALJ should be removed and prevented from hearing any further disability claims.
My previous blog entries have discussed the facts that reveal inappropriate and biased conduct by ALJ Marilyn Hoppenfeld. It came as no surprise to me that a class action lawsuit was filed against her last year on the grounds that she is biased against claimants in general. A copy of the amended complaint from that lawsuit is available in the resources section of my website. Since I am unaware of any allegations that Hoppenfeld lacks mental competency, her blatant refusal to comply with hearing due process rules can only be ascribed to bias.
I just happen to review the efolder of a claimant yesterday whose hearing was held before Hoppenfeld last year. My review disclosed that after the hearing, Hoppenfeld received a letter dated September 23, 2011 from Jennifer Dizon, the vocational expert who testified at the claimant’s hearing. At no time did Hoppenfeld or anyone at her direction send me or the claimant a copy of the Dizon letter for comment, or even inform me that the Dizon letter had been received and placed into evidence as an exhibit.
The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration’s Office of Disability Adjudication and Review (“ODAR”). ALJ’s at ODAR administer hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX procedures and policy statements govern hearings. Every ALJ is supposed to be familiar with the HALLEX. Hoppenfeld has conducted thousands of disability benefit hearings over many years, and cannot possibly claim that she had no idea that the HALLEX obligated her to proffer Dizon’s post hearing evidence to me as the claimant’s representative.
HALLEX I-1-1-20(C)(2) provides that an ALJ must, “Proffer evidence received after the administrative hearing directly to the representative with a copy to the claimant.” That language is simple and unambiguous. Hoppenfeld cannot claim that she was too dense to understand what it required her to do. While that HALLEX provision required Hoppenfeld to proffer the Dizon letter directly to me with a copy to the claimant, she failed to do so.
HALLEX I-1-1-20(C)(2) is not an isolated provision that Hoppenfeld may have overlooked. HALLEX I-2-5-1(B) provides: “If the ALJ obtains evidence after the hearing from a source other than the claimant, the ALJ generally must provide the claimant an opportunity to examine the evidence before entering it into the record as an exhibit. (See I-2-7-30, Proffer Procedures; I-2-6-78, Closing the Hearing; and I-2-7-99 Sample Waiver By Claimant of Right to Inspect Additional Evidence.)” Perhaps Hoppenfeld was too lazy to familiarize herself with the provision’s references, and thought that she did not have to proffer the Dizon letter because HALLEX I-2-5-1(B) used the word “generally.”However, there are simply too many other HALLEX provisions that make it perfectly clear that there was no applicable exception to proffering the Dizon letter.
HALLEX I-2-5-28(E) provides:
If an ALJ receives new evidence after the hearing from a source other than the claimant, and the ALJ proposes to enter the evidence into the record as an exhibit, the ALJ must give the claimant and the claimant’s representative the opportunity to review and comment on the evidence and to request a supplemental hearing unless:
• the claimant or the representative knowingly waived the right to review the evidence and to appear at a supplemental hearing, or
• the ALJ is prepared to issue a fully favorable decision.
Additionally, HALLEX I-2-7-1 provides:
When an Administrative Law Judge (ALJ) receives additional evidence after the hearing from a source other than the claimant or the claimant’s representative, and proposes to admit the evidence into the record, the ALJ must proffer the evidence, i.e., give the claimant and representative the opportunity to examine the evidence and comment on, object to, or refute the evidence by submitting other evidence, requesting a supplemental hearing, or if required for a full and true disclosure of the facts, cross-examining the author (s) of the evidence. (See I-2-7-30, Proffer Procedures.) If the claimant has executed a Waiver of the Right to Examine Posthearing Evidence received by the ALJ after the hearing, then the proffer procedures do not need to be followed. (See I-2-7-15 – Waiver of the Right to Examine Posthearing Evidence and I-2-6-1 – Hearings – General.)
And HALLEX I-2-7-30 provides detailed proffer procedures. Subsection “A” explains when proffer is required.
The Administrative Law Judge (ALJ) must proffer all posthearing evidence unless:
• The evidence was submitted by the claimant or the claimant’s representative and there is no other claimant to the hearing.
• The claimant has knowingly waived his or her right to examine the evidence (See I-2-7-15, Waiver of the Right to Examine Posthearing Evidence.).
• The ALJ proposes to issue a fully favorable decision.
The oft repeated rule in numerous HALLEX sections cannot possibly be clearer – all posthearing evidence must be proffered. There are only three exceptions. The first is if the posthearing evidence was submitted by the claimant or representative. The Dizon letter was neither. The second exception is where the claimant waived the right either on the record at the hearing or in writing. There was no oral or written waiver at any time. The last exception is when the ALJ issues a fully favorable decision. However, the ODAR hearing office status report states that Hoppenfeld will be issuing an unfavorable decision. Hoppenfeld has no possible argument for contending that there was any exception to the basic rule requiring her to proffer the Dizon letter.
HALLEX I-2-7-35 is yet further proof of Hoppenfeld’s bias. HALLEX I-2-7-35(B) provides:
In addition to making the proffered document(s) an exhibit, enter into the record all documents demonstrating compliance with proffer procedures; e.g., copies of proffer letters to the claimant and representative, the comments submitted by the claimant or representative or the Examination of Evidence form signed by the unrepresented claimant, letters sent to treating physicians with notations that copies were also sent to the claimant.
If an ALJ enters posthearing evidence into the record without proffer, the ALJ must ensure that the claimant waived the right to examine the evidence and to appear at a supplemental hearing. The waiver may have been made on-the-record at the hearing or by a signed written statement. Regardless of the form of the waiver, the ALJ must ensure on-the-record that the claimant (especially a pro se claimant) is fully informed of and understands the effects of the waiver. If the waiver was by a signed written statement, the ALJ must enter the statement into the record as an exhibit.
Hoppenfeld failed to enter into the record any documents demonstrating compliance with proffer procedures because there are none because she intentionally refused to comply with those procedures. There are no copies of proffer letters to the claimant and representative because Hoppenfeld knew that it would result in a rebuttal and a demand for a supplemental hearing to cross examine Dizon. There are no comments from the claimant or myself in the file because that is exactly what Hoppenfeld sought to avoid by refusing to proffer.
Hoppenfeld entered the Dizon posthearing evidence into the record without proffer, and without ensuring that the claimant waived the right to examine the evidence and to appear at a supplemental hearing. As stated above, Hoppenfeld’s goal was to avoid that from happening. No waiver was made on-the-record at the hearing or by a signed written statement. Hoppenfeld made absolutely no attempt to see if the claimant’s putative waiver were fully informed or if the claimant, whose IQ shows that he is retarded, understood the effects of the waiver. Simply put, there is no waiver, oral or signed, yet Hoppenfeld had no problem entering the Dizon statement into the record as an exhibit.
Hoppenfeld cannot claim that she lacks the mental capacity to know how to send a proffer to the claimant because HALLEX I-2-73 and I-4—3-112 provide a sample letter for making the proffer.
There are only two possible explanations for Hoppenfeld’s refusal to proffer the Dizon letter. First, despite her protracted tenure as an ALJ, she has been unable to learn and comply with the most basic fundamental procedures for conducting a hearing, in which case she should be removed for gross incompetence. However, as noted above, I am unaware of any proof that she lacks mental capacity. Therefore, it appears that the only plausible explanation for Hoppenfeld’s failure to proffer the Dizon evidence is that it was an intentional circumvention of the rules in order to help her issue her preconceived determination to deny the claimant’s case regardless of the evidence, in which case she must be removed as an ALJ because of her bias, which is consistent with the allegations in the class action lawsuit that was filed against her.
As if Hoppenfeld’s intentional refusal to comply with the rules were not enough, evidence that I submitted is missing from the file. On October 18, 2011, I sent a letter to Hoppenfeld that included a report from a VESID psychologist that clarified his prior report. My letter and the enclosed report were submitted to ODAR through Electronic Records Express, for which I have the receipt that ODAR received it. Yet, that letter, and others that I filed after the hearing, including letters from employers and neighbors attesting to the claimant’s inability to read and write, are mysteriously and conspicuously missing from the claimant’s efolder. If that is not evidence of bias then what is? Surely, the manipulation of the evidence in the record cannot be legal, let alone fair, and surely proves that Hoppenfeld should be barred from hearing disability cases.