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Saturday, March 3rd, 2012

Transparent Hoppenfeld Bias

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.

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    • Unum Ordered To Produce Witnesses For Depositions
  • June (5)
    • Social Security Form DDD-3883
    • Acceptable Medical Sources
    • Petition Regulators About Unum
    • Consultative Exam Withdrawn
    • Padro Class Action Notices
  • May (6)
    • Rejecting SSA Remand Offer
    • CIGNA Regulatory Settlement
    • Polymyositis
    • NOSSCR Conference
    • SSA Misinformation
    • Padro Class Action Settlement
  • April (10)
    • DDS Actually Listened
    • Padro Class Action Update
    • Same Day SSD & DI Award
    • SSD for Letter Carrier
    • Illusory Unum Approval
    • Work History & Credibility
    • Lupus
    • Thank You Judge Irizarry
    • Crohn’s’ Disease
    • Work History
  • March (6)
    • Eliminate the SSD Waiting Period
    • Urinary Incontinence
    • SS Retirement or Disability?
    • Ignoring Unreasonable Requests
    • Officer Approved in 2 Months
    • PADRO Class Action
  • February (8)
    • Updating Evidence
    • SSD & Chiropractors
    • SSD Approved In Under 2 Months
    • Hypertrophic Cardiomyopathy
    • Queens ALJ Bias Plaintiff
    • Breast Cancer
    • CIGNA LTD Fraud Template
    • Unsuccessful Work Attempt
  • January (8)
    • Why DDS Denies SSD Claimants
    • Partially Favorable Onset Appeal
    • Treating Physician Rule
    • FCE Spurs Unum Approval
    • Commendable Action By ALJ
    • ERISA Exception
    • Importance of Vocational Evidence
    • State Agency Exam Notices
  • 2012 (87)
  • December (4)
    • SSD Approved In 3 Months
    • Social Security Myth
    • Subpoena Leads to SSD Award for Rheumatoid Arthritis
    • Another CE Problem
  • November (4)
    • CIGNA Bad Faith Affirmed
    • Walking Time Bomb
    • Three Heads Are Better Than One
    • Power Restored
  • October (7)
    • Appeals Council Remands
    • Social Security & The Presidential Election
    • SSD Claimants Need To Review Their Efolders
    • Firefighter Awarded SSD
    • Obesity & Disability
    • Videotaping IMA Consultative Examinations
    • Biased Hoppenfeld Decision Reversed
  • September (4)
    • Ileocolic Resection
    • ALJ Bias Overcome
    • Updating Medical Evidence
    • Should I Take Early Retirement?
  • August (9)
    • IMA Disability Services
    • Carpenter Wins SSD For Wrong Reason
    • Padro ALJ Bias Class Action To Be Settled
    • Binder & Binder Replaced
    • If at first …
    • IMA Disability Services
    • The Office of Medical and Vocational Expertise
    • Newsday Article
    • The SSD “12 Month Rule”
  • July (6)
    • Medical Expert Interrogatories
    • Patchogue Ineptitude
    • Emphasizing Work History
    • Reopening Disability Applications
    • What is NY Waiting For?
    • When Objective Evidence Isn't Enough
  • June (10)
    • Disability Benefits For Nurse
    • Bench Decision
    • Hearing Avoided
    • Disability Pension Award From Union
    • IMA Exams In New York
    • AARP On SSD
    • How Much Will Social Security Pay You?
    • SSD & Unemployment Benefits
    • State Agency-IMA Bad Faith Tactics
    • Why Bother With An Exam By IMA?
  • May (14)
    • Workers Compensation & SSD
    • Hoppenfeld Bias
    • Veteran Gets SSD for Memorial Day
    • Vocational Evidence
    • Establishing Mental Disability
    • IMA Exam Is Not Required
    • Postherpetic Neuralgia
    • Multiple Sclerosis
    • Disabling AION
    • Proof of Birth for SSD
    • Corroboration is not Superfluous
    • Social Security Listings
    • CIGNA CONTINUES ILLEGAL CONDUCT
    • Fast SSD Approvals
  • April (9)
    • Impaired Use of Hands
    • Representative Payee
    • Onset Appeal
    • Amending SSD Onset Date
    • State Agency Vocational Experts
    • Causation and Social Security Disability Benefits
    • Alport Syndrome
    • David Nisnewitz Found Unfit To Be ALJ Again
    • Reopening SSD Applications
  • March (6)
    • Another Example of ALJ Fier's Bias
    • Physician Specialty
    • Medical Source Statements
    • Podiatrists and Disability Benefits
    • Retaining Social Security Experts
    • Transparent Hoppenfeld Bias
  • February (7)
    • State Agency Disability Analysts
    • SSD & WC
    • SSA Should Reimburse Travel
    • Disability Benefits For Carpenter
    • Carpal Tunnel Syndrome
    • SSD Approved in Two Months
    • Reflex Sympathetic Dystrophy
  • January (7)
    • Veterans Medical Source Statements
    • Disabled by Schizophrenia
    • Receiving SSD Benefits and an Income
    • Vocational Credibility
    • SSD For Police Officer
    • Kienbock's Disease
    • Patchogue Incompetence
  • 2011 (89)
  • December (4)
    • Binder and Binder
    • Appeals Council Doltishness
    • NYCERS Disability Pension
    • Can You Receive SSD If You Have Income?
  • November (6)
    • Rheumatoid Arthritis
    • Multiple Impairments
    • Adverse Evidence
    • Cerebrovascular Accident & SSD
    • Was A Video Hearing Needed?
    • NOSSCR Conference
  • October (7)
    • SSD Approved in 2 Weeks
    • SSD Approved In 2 Months
    • Disability and Diabetes
    • Social Security Benefit Increase
    • Vocational Experts
    • IMA Consultative Examinations
    • Hoppenfeld & The Rotation Policy
  • September (9)
    • Alzheimer’s
    • Federal Court Reassigns Nisnewitz Case
    • Approval After Federal Court Remand
    • Abusive Hoppenfeld Conduct
    • Rheumatoid Arthritis
    • SSD Overpayments
    • LTD Approved In Less Than A Month
    • Maximizing Disability Benefits
    • Mixed Connective Tissue Disease
  • August (7)
    • When To Amend The Disability Onset Date
    • Right To Cross Examine Post Hearing Experts
    • Commissioner’s Statement Is Offensive
    • Gilding the Lily
    • SSD Approved in 2.5 Months
    • When to File for SSD
    • Disability & Incontinence
  • July (11)
    • Hoppenfeld Fibromyalgia Bias
    • On The Record Requests
    • LTD Approved In Two Months
    • Work History
    • Relocating While Disabled
    • Carpal Tunnel Syndrome
    • Getting Disability Benefits Quickly
    • SSD Approved in 3 Months
    • SSD Approved In Two Months
    • SSD & WC Offset
    • Disability Analysts
  • June (7)
    • Federal Court Decision
    • Social Security Depravity
    • Depression and Anxiety
    • Fully Favorable Appeals Council Order
    • Erythema Multiform Major
    • SSD in Three Months
    • Lincoln Life Pays LTD Benefits
  • May (8)
    • Acquiring Work Skills
    • Court Rejects CIGNA LTD Termination
    • Disability Benefits & Substance Abuse
    • Endometriosis
    • SSD Approved In 2 Months
    • Raising The Retirement Age
    • No More Paper Checks
    • Treating Doctors
  • April (11)
    • SSA Prehearing
    • Disability Redefined
    • Consultative Examinations
    • Evidence of Hoppenfeld Bias
    • ALJ Nisnewitz Rejected Again
    • ALJ Bias Class Action
    • Working And SSD
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    • Federal Court Decision
    • ALJ Strauss Rejected Again
    • Seven Year Wait Over
  • March (8)
    • Lyme Disease
    • ALJ Strauss Reversed Again
    • Remand To A New ALJ
    • “Secret” Child’s Benefits
    • Unfair CIGNA Tactics Detailed
    • LTD Policy Offsets
    • Partially Favorable Decisions
    • SSD While Working
  • February (9)
    • Expediting Disability Benefits
    • Multiple sclerosis
    • Date Last Insured
    • Radiculopathy
    • Videoconference Hearings
    • Expediting Disability Benefits
    • Patchogue Incompetence
    • Federal Court Decision
    • Union Disability Approved
  • January (2)
    • Does ALJ Strauss Try To Get Reversed?
    • ALJ Fier Unfit To Rehear Case
  • 2010 (75)
  • December (7)
    • SSA Notice of Awards
    • SSA Doctors
    • Protective Filing Date
    • SSA Delays
    • On The Record Requests
    • Dialysis & Disability
    • Disability Opinions & Medical Tests
  • November (7)
    • LTD and SSD
    • CIGNA Sued For Surveillance
    • Attorney Advisors
    • Social Security Doctors
    • Unum Reverses Termination
    • Electronic Records Express
    • Multiple Impairments
  • October (4)
    • Liver Cancer
    • Unum Approves Fibromyalgia Claim
    • Comorbid Conditions
    • “Partially Favorable” Decisions
  • September (6)
    • Income Doesn't Bar Disability Benefits
    • Celiac Disease
    • Proving Disabling Pain
    • EAJA Fees
    • IMA Disability Services
    • Self Employment
  • August (5)
    • Headaches
    • Ankle Injuries
    • Partially Favorable Decisions
    • Bench Decisions
    • Fibromyalgia
  • July (6)
    • Medical Listing Opinions
    • Treatment Records
    • Avoiding SSD Hearings
    • Federal Court Remand
    • The MTA & SSD
    • When Work Doesn’t Count
  • June (7)
    • Gastroparesis
    • Sjogren's Syndrome
    • Benefits After A Federal Court Remand
    • Firefighter Gets SSD Benefits
    • Prudential Approved LTD, For Now
    • Chronic Fatigue Syndrome
    • Getting Benefits While Working
  • May (7)
    • EAJA Fees
    • Stroke
    • New Jersey District Court Remand
    • District Court Remand
    • ALJ Hoppenfeld Overtly Acts Biased
    • Veterans
    • NYCERS & SSD
  • April (8)
    • Medical Evidence and Functionality
    • Deceptive SSA Notices
    • Onset Date
    • Queens ALJs
    • When Can You File For SSD Benefits?
    • Parkinson’s Disease
    • Consultative Exam (“CE”) Ruled Improper
    • EAJA Fees
  • March (5)
    • Consultative Examinations
    • New Office
    • Complaining About Biased ALJs
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    • Multiple Impairments
  • February (6)
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    • Retrospective Medical Opinion
  • January (7)
    • Disability For Federal Employees
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    • Charcot-Marie-Tooth
    • Depression and Anxiety
    • RSD/CRPS
  • 2009 (60)
  • December (5)
    • Getting SSD Even If You Can Work
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    • Settling With CIGNA
    • Avoiding An Improper Consultative Exam
  • November (5)
    • Multiple Sclerosis
    • Protective Filing Dates
    • SSD Delays
    • Reopening Past SSD Denial
    • ALJ Strauss’ Reliance On ME Cohen’s Testimony Proves She Is Biased
  • October (7)
    • Listed Impairments
    • Multiple Medical Sources
    • Attorney Advisors
    • Avoiding Consultative Examinations
    • Atypical Parkinson’s
    • Chondromalacia
    • Subpoena The SSA Doctor
  • September (3)
    • Prudential Reverses Fibromyalgia STD & LTD Denial
    • ALJ Nisenewitz: Stupid or Biased?
    • LTD & Health Insurance
  • August (3)
    • Teacher Finally Receives SSD Benefits
    • SSA Consultative Examiners
    • Child’s Benefits
  • July (4)
    • Retrospective Medical Opinions
    • Senior Attorney Adjudicators
    • Medical Improvement
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  • June (4)
    • Chronic Fatigue Syndrome (CFS)
    • Dictionary of Occupational Titles
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  • May (5)
    • Courts Rules CIGNA Is Biased
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    • Avoiding SSD Remand Hearing
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  • March (9)
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  • February (4)
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  • January (7)
    • Court Blasts CIGNA LTD Benefit Termination
    • Obama and Social Security Benefits
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  • 2008 (70)
  • December (5)
    • Unum Cases In New York
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  • November (5)
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    • Appeals Council Remand
  • October (6)
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    • Vertigo
    • Multiple Impairments
  • September (4)
    • Medicare
    • ALJ Hoppenfeld
    • Fibromyalgia
    • Appeals Council Remand
  • August (8)
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    • More Is Better
    • Disability Benefits & Work
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    • Negotiating Disability Benefits
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    • GMA Exposes CIGNA
    • Work History
  • July (6)
    • Onset and Application Dates
    • Supreme Court Helps LTD Claimants
    • Expediting SSD Cases
    • Two Heads Are Better Than One
    • LTD Litigation
    • Retrospective Medical Opinions
  • June (7)
    • Establishing An Onset Date
    • Field Visit
    • Multiple Attorneys
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    • Special Accommodations
    • Multiple Disability Benefits
    • Clarifying Objective Evidence
  • May (3)
    • Unum Games
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  • April (7)
    • “Fully Favorable” Decisions
    • Treating Sources
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  • January (7)
    • “Accentuate The Positive, Eliminate The Negative”
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    • Seminar
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    • Uveitis
  • 2007 (58)
  • December (7)
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    • Inability To Speak English
    • Discovery In ERISA Cases
    • Don’t Be Intimidated By DDS
    • Multiple Sclerosis
  • November (7)
    • Avoiding Hearings
    • Working Does Not Preclude Benefits
    • Be Wary of Forms
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    • Consultative Examinations
    • Purpose of SSD Hearing
  • October (6)
    • Why Wait?
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    • Vertigo
    • No Objective Testing Required for Chronic Fatigue
    • Non-binding Disability Decision
  • September (3)
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  • June (4)
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