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On April 22, 2011, I discussed the class action lawsuit that accuses Administrative Law Judges (“ALJs”), including Marilyn P. Hoppenfeld, of bias against Social Security disability claimants. The New York Times article about the class action, and a copy of the class action complaint, can be found on my web page’s Resources tab. I had a hearing yesterday with Hoppenfeld that mirrors the allegations in that class action lawsuit.
From the outset, Hoppenfeld tried to intimidate the claimant. In one of the most disgusting displays that I have ever seen by an ALJ, despite the fact that Hoppenfeld knew the claimant had an IQ in the retarded range, she kept telling him that his mother should be arrested for not making him go to school. When she saw that her comment upset the claimant, ALJ Hoppenfeld continued to ask why his mother had not been arrested. Moreover, Hoppenfeld refused to sit at her seat, and stood over the claimant throughout much of the hearing. Furthermore, in addition to screaming at me and interrupting my cross examinations in front of the claimant, Hoppenfeld had a guard stand in back of him, and then had the guard sit facing the claimant.
One of the issues in the claimant’s case is Hoppenfeld’s misuse of experts. When the claimant was proceeding pro se, ALJ Hoppenfeld did not find any reason to call experts. However, after Hoppenfeld learned that an attorney was representing the claimant, she suddenly saw the need for THREE experts. I reviewed the claimant’ official SSA file on line both before I was retained, and after ALJ Hoppenfeld decided three hearing experts were needed. Not a single document was added during the interim. The only change was that ALJ Hoppenfeld now knew that the claimant was being represented by an attorney. That decision, in and of itself, evidences Hoppenfeld’s bias. But there is much more.
Misuse of experts happens to be one of the allegations in the class action lawsuit filed against ALJ Hoppenfeld for her anti-claimant bias. The class action alleges that her “consistent errors are highly probative of her anti-claimant bias,” and her pervasive misuse of experts is one of the examples of those consistent errors.
One way that ALJ Hoppenfeld abuses the hearing process is by failing to comply with Social Security’s rotation policy in HALLEX I-2-5-36(D), which provides:
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.
As part of its investigation into ALJ Hoppenfeld’s anti-claimant bias, Social Security needs to review if she complies with the rotation policy. Both hearings I had with Hoppenfeld during the past 2 years included the same Medical expert (“ME”), a psychiatrist named Alfred Jonas. In the first case, Jonas testified that fibromyalgia is really misdiagnosed depression, and Hoppenfeld refused to allow me to cross examine ME Jonas regarding the basis for his belief that fibromyalgia does not really exist.
Yesterday was the next time I had a case with ALJ Hoppenfeld, and once again ALJ Hoppenfeld had ME Jonas testifying. It is either an incredible coincidence that ME Jonas was selected for each hearing, or it is further proof that ALJ Hoppenfeld intentionally skirts the rotation policy in order to use experts who she knows from prior practice would testify adversely to claimants. ME Jonas’ testimony at the claimant’s hearing certainly supports the latter.
The claimant had a Comprehensive Psychological Evaluation (“CPE”) performed by Dr. Gus C. Pappetrou, a VESID psychologist. VESID is a New York State agency that tries to help disabled people find or maintain work. The claimant is a 52 year old, with a fourth grade education. Because he was unable to continue his unskilled work as a roofing helper due primarily to back and knee pain, the claimant sought VESID’s help to find alternative employment. VESID sent the claimant to Dr. Papapetrou for the CPE, which was a battery of psychological tests, including IQ tests. ME Jonas apparently thought Dr. Pappetrou was the claimant’s psychologist, and testified that he did not know what VESID is.
The CPE found that the claimant had a Verbal IQ of 69 and a Full Scale IQ of 67. If a claimant has a Verbal IQ of 69 OR a Full Scale IQ of 67, then if he has an additional limitation imposing significant limitations of function, it would require a finding of disabled under listing 12.05C. The claimant’s treating physician concluded that the claimant cannot even perform sedentary work. However, as stated in the class action, ALJ Hoppenfeld has a practice and pattern of ignoring treating physician opinions. Hoppenfeld’s second ME was J. Warren 
 Axeline also went out of his way to try to discredit the claimant. Even though the claimant had testified that he took extra pain medication today because he knew he would have to sit for a prolonged period of time, and even though he left the room because he needed breaks, Axeline felt it necessary to point out to ALJ Hoppenfeld that the claimant had been sitting during the hearing. As an initial matter, the “sit and squirm” test has been universally rejected. Moreover, if Axeline thought the claimant’s ability to sit at the hearing was relevant, then he should have asked the ALJ to inquire about the effects that sitting at the hearing would have on him the next day. Axeline failed to ask that question because he knew, and as the claimant testified afterwards, he would be in excessive pain and stuck at home the next day.
Axeline, who testified that the claimant’ physical impairments would limit him to light work. The case law holds that the inability to perform very heavy, heavy, or medium work, and being limited to light work, constitute significant limitations of function under 12.05C. Therefore, ALJ Hoppenfeld should have immediately ruled that the claimant met 12.05C. However, just as she did in my prior cases, ALJ Hoppenfeld ignored the reliable treating evidence in favor of ME Jonas’ testimony.
In my prior case, Hoppenfeld accepted ME Jonas’ absurd testimony that fibromyalgia does not exist in order to deny the claimant’s SSD benefits. Here, ALJ Hoppenfeld accepted Jonas’ bizarre testimony regarding Dr. Papapetrou. As an initial matter, Jonas is unqualified to assess Dr. Papapetrou’s CPE. Jonas stated that he is a psychiatrist, not a psychologist, and admitted that he has never performed any psychological testing, including the tests performed in the CPE. Jonas also admitted that the tests used in the CPE are valid tests, including the IQ tests. However, ME Jonas said that he could not accept the IQ scores because Dr. Papapetrou did not state the tests were valid.
Jonas’ conclusion shows the depraved lengths he will go to assist an ALJ in denying benefits. On the one hand, Jonas assumes that the claimant’s IQ scores are not valid because Dr. Papapetrou did not say they were valid. On the other hand, Jonas did not assume that the claimant’s IQ scores are valid, even though Jonas admitted that Dr. Papapetrou did not say the IQ scores were invalid. Similarly, Jonas stated that he would not accept the CPE because Dr. Papapetrou did not state that the claimant was not inebriated. According to Jonas’ logic, the claimant has no left arm because Dr. Papapetrou failed to say he has one. Moreover, Jonas admitted that if the claimant were inebriated, then he would have expected Dr. Papapetrou to say so.
Because Jonas has a history of testifying that the only listing claimants meet is for substance abuse, as he did once again at yesterday’s hearing, I asked ALJ Hoppenfeld to admit into the record a letter from Dr. Patel, the claimant’s doctor, stating that alcohol has nothing to do with the claimant’s inability to work. ALJ Hoppenfeld refused to admit Dr. Patel’s letter into evidence. Hoppenfeld then claimed Dr. Patel’s letter was already admitted, but refused to identify the exhibit initially, and then stated it was Exhibit 13F. I immediately told Hoppenfeld that Dr. Patel’s letter was not in Exhibit 13F. Not surprisingly, ALJ Hoppenfeld and Jonas failed to explain how alcohol could have contributed to the claimant’s learning disorder or retardation, which was evident when he was 10 years old and failed to graduate beyond the fourth grade. The claimant submitted letters from a neighbor and former employer who that the claimant cannot read ort write.
Throughout the hearing, ALJ Hoppenfeld constantly interrupted my questioning of her expert witnesses whenever she recognized the answers would help the claimant’s case. Hoppenfeld coached the expert witnesses with leading questions, and even worse, she repeatedly testified for the experts to prevent them from giving answers that would help the claimant’s case. ALJ Hoppenfeld repeatedly refused to allow the experts to answer questions that she thought would help the claimant. EVERY time that Hoppenfeld refused to develop the record, I asked her to cite what rule or regulation she relied upon to prevent the expert from answering, and Hoppenfeld failed every single time to cite any authority for her rulings. When I said she was not above the law and had to comply with the Social Security rules and regulations her boilerplate non-response was that this was her hearing.
Hypocritically, Hoppenfeld claimed that I was improperly asking the claimant leading questions. I asked her to cite the authority that precluded me from doing so. Once again, Hoppenfeld was incapable to do so. She claimed that her 30 years as a trial lawyer was her authority. I told her that any lawyer would know that when dealing with a claimant with an IQ below 70, which ME Jonas testified should have resulted in a diagnosis of mental retardation, it was appropriate to ask leading questions. In other words, Hoppenfeld had no problem asking her experts leading questions, but refused to allow me to ask leading questions to the claimant despite his being diagnosed with a learning disorder and or mental retardation.
Despite ALJ Hoppenfeld’s interruptions, I did get ME Jonas to testify that he would accept the IQ scores from Dr. Papapetrou’s CPE if he explained (a) why he did not specifically state in the CPE that the test scores were valid, (b) why he did not say if the claimant was inebriated; and (c) why the diagnosis was learning disorder instead of mental retardation. I stated that I would have the claimant or his wife obtain those answers from Dr. Papapetrou, even though for the reasons stated above, Jonas’ professed need for that information is specious at best.
In short, Jonas knew that the CPE required finding the claimant disabled. Therefore, his solution was concocting fraudulent reasons for discrediting it, in order to require the claimant to attend a new consultative examination. In other words, if the evidence conclusively supports disability, throw it out. If Jonas truly believed that the CPE IQ scores could only be deemed reliable if Dr. Papapetrou had explained why he did not specifically state in the CPE that the test scores were valid or if the claimant were inebriated, and why Dr. Papapetrou’s diagnosis was learning disorder instead of mental retardation, then a simple letter or call to Dr. Papapetrou would solve that problem. However, since Hoppenfeld and Jonas know that Dr. Papapetrou would be able to explain away Jonas’ inane excuses they insist that the claimant start all over and see somebody else for testing in the hope that they will get results less favorable to the claimant.
The only reason Hoppenfeld refuses to seek information from Dr. Papapetrou to clarify his IQ scores is because she knows he will support the claimant’s disability. The rules and regulations require ALJ Hoppenfeld to contact Dr. Papapetrou if she believes there is any inconsistency that requires clarification or if there is a gap in the CPE report. The rules and regulations do not allow Hopenfeld to request a second opinion simply because she does not like the fact that the prior opinion requires a finding of disabled. Hoppenfeld cannot even claim that Dr. Papapetrou cannot be trusted because he is a biased treating source. Dr. Papapetrou works for VESID, a State agency just like the State agency that would send the claimant for a consultative exam.
ALJ Hoppenfeld’s use of Jennifer Dizon, the vocational expert (“VE”), was equally unprofessional and violative of the rules and regulations. Hoppenfeld would not allow me to ask hypothetical questions to the VE on the grounds that it was not based on medical evidence. This shows Hoppenfeld’s bias or utter incompetence. The very definition of a hypothetical question is that it is not based on a particular document or finding. In any case, my hypothetical was based upon Dr. Patel’s medical conclusions.
The VE identified three occupations from the Dictionary of Occupational Titles (“DOT”) that she claimed the claimant could do: 323.687-014 housekeeper, 729,687-010 electrical assembler, and 230.687-010 pamphlet distributor. Once again, Hoppenfeld continually interrupted my questioning, testified for the VE, and refused to let the VE answer questions, each time Hoppenfeld suspected the testimony would hurt her ability to deny the claimant’ application. Hoppenfeld’s gross failure to develop the record is another example of her anti-claimant bias, which is another one of the allegations in the class action filed against her.
The VE testified that the three occupations had a DOT language level of 1, which she said requires recognizing the meaning of 2,500 words, which was false testimony. The DOT actually states that a language level 1 requires the ability to recognize 2,500 two or three syllable words. Perhaps the VE’s serious mistake could be attributed to her thinking the distinction was unimportant. Although I find it hard to believe that a person responsible for assessing people’s ability to work would think that whether a person can recognize 2,500 words as opposed to 2,500 two and three syllable words to be unimportant. However, the VE’s testimony was outright deceptive. The VE failed to disclose that language level 1 also requires the ability to read at the rate of 95-120 words per minute. The claimant cannot read at all let alone 95 to 120 words a minute. The VE knew that, which explains why she omitted that highly critical fact. The VE also failed to note that language level 1 also requires the ability to compare similarities and differences between words and between series of numbers.
The VE’s description of the language requirements of the occupations gets even worse. She stated that a claimant at that level would have to be able to print simple sentences. What the DOT actually states is that level 1 requires the ability to print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses. Once again, the VE’s omission of these highly probative requirements bespeaks the taint and unreliability of her testimony. Notably, electrical assembler requires language level 2, which is even more complicated than level 1.
Language 2 level requires a passive vocabulary of 5,000-6,000 words; the ability to read at rate of 190-215 words per minute, including adventure stories and comic books; looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation; and the ability to read instructions for assembling model cars and airplanes. As for writing, level 2 requires the ability to write compound and complex sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs. Additionally, level 2 requires the ability to speak clearly and distinctly with appropriate pauses and emphasis, correct punctuation, variations in word order, using present, perfect, and future tenses. The claimant undeniably lacks those abilities too.
The VE’s testimony regarding math level 1 is just as reprehensible. Not having access to the DOT at the hearing, I also asked the VE what the math requirements were for level 1. The VE testified that level 1 required adding and subtracting. Once again, the VE, who stated that she was reading from the DOT, misstated the truth. According to the DOT, math level 1 requires adding and subtracting two-digit numbers, as opposed to leaving the impression that adding and subtracting single digit numbers was all that was required. Even more egregious, the VE intentionally omitted that math level 1 requires the ability to multiply and divide 10’s and 100’s by 2, 3, 4, 5. The VE purposely concealed that information because she recognized that it was at odds with the claimant’s ability to perform those tasks. Concrete evidence of the VE’s despicable testimony was her falsely testifying that the claimant said he performed measurements while working as a roofer. I stated that there was no such testimony, and then asked the claimant if he did any measuring at work, to which he said no.
The VE admitted that according to the DOT the claimant could not perform the three occupations if he were unable to read or write. However, the VE then testified that the claimant could do the housekeeper job and pamphlet distributor anyway. When I tried asking the VE to explain the basis for her conclusion that was contrary to the DOT, Hoppenfeld refused to allow the VE to answer, even though SSR 00-4p specifically requires that information. Hoppenfeld refused to allow me to cross examine the VE properly on that point because she knew the VE lacked any basis for her testimony that conflicted with the DOT. I asked the VE how many pamphlet distributors she had observed at work because I wanted to see the basis for her testimony that contradicted the DOT. The VE evasively said she had observed 500 pamphlet distributors at work. When I asked how many did she observe for a full 8 hour day to see if they required no reading or writing, Hoppenfeld told the VE not to answer, although the VE then admitted the answer was none, and that she had merely passed by those purported 500 pamphlet distributors at street corners.
I have lived in Manhattan for many years, and never saw that many pamphlet distributors, yet the VE somehow managed to see 500 of them in Rochester. More importantly, the VE’s claim that she knows a pamphlet distributor does not need to read and write because she passed them by on street corners is an insult to her profession, and demonstrates that when her opinion contradicts the DOT it is not reliable. Similarly, the VE testified that the claimant could work as an electrical assembler, contrary to the DOT, because that work did not require the ability read and write. However, when I asked how many electrical assemblers she observed at work in order to come to her conclusion which was at odds with the DOT she admitted that she had never done so.
Based upon Dr. Patel’s conclusion that the claimant could not stoop, kneel, or crouch, I asked the VE if a person with those limitations could do the three jobs that the she had identified. The VE said that she thought a person could. However, when I asked how she made that conclusion contrary to the DOT, the VE said she had no answer. In fact, because the VE admitted that she had no answer, ALJ Hoppenfeld said that she would hold the hearing open so the VE could provide answers.
I then asked the VE if the claimant lacked the ability to pay attention and concentrate, which is what Dr. Patel had concluded, could he perform any of the three occupations. The VE said yes because those occupations were SVP 2. However, when I asked where the DOT stated that an occupation with an SVP of 1 or 2 did not require the ability to pay attention or concentrate, once again, the VE was unable to state where the DOT said that.
ALJ Hoppenfeld precluded additional cross exam of the VE. The claimant testified that because of his hands he drops things. He showed the ALJ how his hand cramps up into a claw. The records reflect the claimant’s hand tremors, and he testified that Dr. Patel said he had arthritis in his hands. Dr. Patel concluded in report that the claimant is restricted from using his hands for handling, grasping, turning, and twisting objects, which the three occupations the VE identified require. Not surprisingly, the VE failed to address that point, and Hoppenfeld omitted those limitations, as well as many others, from the hypothetical questions she posed to the VE.
As you may surmise, the above represents merely the tip of the iceberg. Hoppenfeld’s actions yesterday were emblematic of the unfair way that she handles hearings. Her anti-claimant bias is transparent. She referred to the claimant’s testimony under oath as “claims,” indicating a predetermined decision not to accept his statements as credible. At the same time, Hoppenfeld readily accepted the testimony of Jonas regarding the CPE, even though he never did any IQ testing and is not a psychologist, and Hoppenfeld readily accepted the VE’s testimony, which is replete with errors, omissions, and inconsistencies.
In short, you have an illiterate 52 year man, who never went past the fourth grade, with a history of unskilled menial heavy work, who even Jonas admitted is mentally retarded or learning disabled, who went for help to VESID to try to work after he was no longer able to work as a roofer helper. ALJ Hoppenfeld went way out of her way to deprive the claimant a full and fair hearing by following her practice and pattern of unfair tactics. As usual, Hoppenfeld showed she was rejecting the opinion of the treating physician, Dr. Patel, in favor of non-examining sources. She showed that she would rely on ME Axeline not only to reject Dr. Patel’s findings and conclusions, but also the findings and conclusions of Dr. Gallo, who performed the consultative examination for Social Security. Hoppenfeld showed that she would use Jonas, who investigation could show was selected out of rotation, to reject the findings and conclusions of Dr. Papapetrou, who works for New York State, even though Jonas lacks the expertise to critique IQ and psychological testing.
Social Security should investigate all the experts that Hoppenfeld uses to see if she complies with the rotation policy. Hoppenfeld’s pervasive interruption of cross examination, testifying for expert witnesses, and refusing to develop the record by improperly ordering experts not to answer questions demonstrates a gross deprivation of a fair hearing. Simply going through the motions of holding a hearing is not the same as conducting a full and fair hearing.Previous Next