When an administrative law judge (“ALJ”) wants to deny a Social Security Disability (“SSD”) application after a hearing, but the evidence supports disability, the ALJ may send interrogatories to a medical expert (“ME”). If the interrogatories are adverse to the claimant, the ALJ must follow proffer procedures, and the claimant has the right to cross examine the ME. If the ALJ denies an application based on the interrogatories without proffering them, then the SSD claim will be remanded for further proceedings.
Most of the time, ME interrogatory responses contradict the supporting opinions of the treating physicians. In those unusual situations where the opposite is true, and the ALJ intends to issue a fully favorable decision, the interrogatories do not need to be proffered. What happens if the ALJ tries to get a ME to retract an opinion that supports finding you disabled?
I have a case where ALJ Donaghy received interrogatory responses from ME Rita Clark last March that corroborated the disability findings and opinions of the claimant’s psychiatrist and psychologist, and concluded that the claimant met a listing. The ALJ never proffered those responses, and refused to issue a fully favorable decision. Instead, last August, the ALJ resent the verbatim interrogatories, which even included the identical typos.
The only ostensible reasons to resend the identical interrogatories was the ALJ’s hope that Dr. Clark would change her responses for some reason. However, that did not happen. In fact, Dr. Clark reinforced her prior interrogatories responses as additional evidence in the eFolder that supported her opinion.
The three mental health providers who had been treating the claimant since 2009 each concluded that the claimant became disabled before 2010. Despite the fact that the unanimous consensus was that the claimant has been disabled since before 2010, the ALJ decided to ignore all of their opinions, and to ask ME Clark when the claimant became disabled.
The fourth interrogatory asked:
if you have sufficient information to form an opinion within a reasonable degree of medical or psychological probability as to past limitations, on what date were the limitations you found first present?
The question you posed was not the least bit ambiguous or confusing. In fact, to make sure that there was absolutely no misunderstanding the interrogatory, the ALJ’s letter to ME Clark stated: “Please note that the relevant period for this opinion is 12/14/04 – 12/31/10.” To make matters even clearer for Dr. Clark, if that were even possible, the ALJ italicized and bolded her statement, so that Dr. Clark could not conceivably misunderstand the request. And ME Clark did not.
Dr. Clark agreed with the conclusions of the three treating sources. In no uncertain terms, in response to the fourth interrogatory, Dr. Clark stated that the claimant has been disabled since April 6, 2009. However, just as the ALJ was unwilling to accept the opinions of the three treating sources that the claimant became disabled during the relevant period, she was unwilling to accept that Dr. Clark concurred with them, even though the fourth interrogatory and answer were perfectly clear.
I sent the ALJ a letter stating that the “new” interrogatories asked exactly what the fourth interrogatory previously asked, and that the ALJ neglected to explain for the record why she believed it was necessary to ask Dr. Clark the same thing again, other than to get her to change her answer to create an excuse to reject the opinions of the three treating sources. Nonetheless, the ALJ still refused to decide the claimant’s application. Only after a letter recounting the facts was sent to the Division of Quality Service did the ALJ finally approve the claimant’s SSD benefits.
We let the claimant know today that he was approved. He had initially filed his application on his own, and decided to retain us after his claim was initially denied. He believed his application would have been denied again if not for our help. Although the claimant resides in Rego Park, Queens, a friend of his who was a former client of mine, referred him to my office. While I am a disability attorney with offices in Jericho and Melville on Long Island, I regularly do hearings in Queens. Many of my clients do not reside in Nassau or Suffolk County. Because of their disabilities, many clients, even those who live on Long Island, have difficulty coming to my offices. Therefore, my staff and I make the process easy by collecting information by phone, email and fax to minimize their need to travel to my office.Previous Next
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