Federal Court Remand

Saturday, July 10th, 2010

I took over the case of a former dietary aide who needed to file an SSD appeal in federal court. The Appeals Council had agreed with ALJ Weiss that the claimant could perform light work. The court ruled that there were errors when the ALJ made the decision, and remanded the case to ALJ Weiss. After holding a second hearing, ALJ Weiss issued a fully favorable decision today.

During the hearing, I had the claimant testify about the extent of the treating relationship that he had with his neurologist, orthopedists, and chiropractor. Each concluded that the claimant lacked the ability to perform sedentary work. The ALJ had Gerald Greenberg testify at the second hearing as a medical expert (“ME”), and he concluded the claimant could do sedentary and probably light work. On cross exam, I had the ME admit that the treating doctors were in a better position than he was to evaluate how the claimant’s symptoms affected his ability to work by virtue of their having examined the claimant. At the close of the hearing I pointed out to the ALJ that even if the claimant had a sedentary work ability that he would still have to be found disabled under the medical-vocational rules.

ALJ Weiss accepted the opinions of the treating physicians over the ME because the ME “did not have a treating relationship with the claimant, nor did he have the benefit of examination.” The ALJ also noted that the claimant would have to be found disabled even if he could do sedentary work as the ME had concluded.

The hearing went smoothly because I had assumed that the ME would testify the claimant could do light work, and I had prepared a cross exam to undermine the ME’s conclusions. The ALJ had indicated that he would probably issue a decision again finding that the claimant could do light work, but it appears the cross exam of the ME precluded that.

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