From the New York Times:
The Queens office that hears appeals of Social Security disability cases is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits. ...
Now, a class-action lawsuit filed on Tuesday in Federal District Court in Brooklyn says that five of the eight Queens judges are not just difficult, but also biased against the applicants — many of whom are poor or immigrants — and have systematically denied benefits to the disabled by making legal and factual errors. ...
The five judges named in the suit are David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss. ...
The Times’s analysis found that the rejection rate for the entire Queens office, 50.9 percent, was the highest in New York State, and far higher than in other New York City boroughs; in the current fiscal year, Manhattan has an average denial rate of 37 percent, the Bronx 33 percent, and Brooklyn 14.5 percent.
14 comments:
The only thing that surprises me is that it took this long for a lawsuit like this against these horrible ALJs.
"poor or immigrants"
I presume,facts and commonsense should have lead to this action before now.
What a joke of a lawsuit. Hope the attorneys who brought it are disciplined accordingly.
It works both ways. There was a recent article about an ALJ in Puerto Rico who was allowing almost every case he heard. Maybe all of the ALJ's should be expected to allow and deny within allowable statistical parameters.
A high denial rate at the ALJ level should be the norm considering that prior to reaching the ALJ level the claimant has typically been denied twice by medical experts.
Moreover, in the first five months of the fiscal year (October 2010 to February 2011), the Queens NY ODAR denied a total of 547 cases and paid a total of 527 cases. So, a twenty case difference between denials and pays equals the 10th highest denial percentage in the country.
Instead of hassling Queens for denying slightly more than it pays, someone ought to investigate how Brooklyn pays 85.5% of its cases. Or the media could look at ALJ Daugherty of West Virginia, who paid 596 cases and did not deny a single case in the first five months of the fiscal year.
"the claimant has typically been denied twice by medical experts"
Funniest damn thing I heard all day. The regulations may call state agency consultants "experts" but if you ever dealt with some of them you would know that many are far from even competent. Like the two so called "experts" who denied a client of mine who had no arms or hands. Since she was born this way, and the loss of her hands was not due to amputation, they said she didn't meet a listing and gave her an RFC for light work.
You and I both know that the example you gave is an anomaly. While DDS is not perfect and there are medical consultants who are not very component (both in failing to recognize obvious disabilities and in finding people disabled who are clearly not (there is a psychologist who does a lot of consulative examinations for SSA who has yet to meet a claimant with a GAF score above 45)), the DDS medical consultant opinions are generally pretty reasonable. Most people who are clearly disabled get paid by DDS.
Most pays at the ALJ level are based on the age-based presumptions for individuals 50 and older, not because the individual is truly disabled.
Not an anomaly, just an extreme example of what goes on at the DDS everyday. I find it amazing that I only see medium RFC's issued for folks 55 and older. Why do I bring this up, because it is a clear indication that what the DDS is doing is determining the RFC based on the outcome it will produce instead of basing it on the evidence.
DDS gives medium RFCs to people under 55. The problem with DDS is not cherrypicking an RFC so they can deny claims, but rather giving overly generous RFCs in situations where the claimant is clearly not disabled. It is much more likely to see an undeserved sedentary RFC for a person in their 40s or light RFC for someone in their early 50s, than to see someone in their late 50s being found capable of doing medium work when that is clearly not possible. Of course, the overly generous sedentary or light RFC will often force a pay once the person reaches 50 or 55 respectively.
Clearly we are seeing things from very different viewpoints. All I ask for is a fair evaluation of the evidence and issues whether at DDS or ODAR.
I think DDS docs should give an RFC without having any knowledge regarding age or vocational factors. Perhaps then we will get more realistic RFCs. I think that is something we can both agree on.
Regardless of what the evidence does or does not show, how do these ALJ's defend federal court judges labeling ALJ questioning of both claimant's and their own medical witnesses as "combative", ALJ decisionmaking as "incoherent", and hearings conducted in a tone that was "brusque, intemperate and unhelpful"? These are federal district court judges saying this about ALJ's. I was told by a reliable source that one of these ALJ's tried to physically attack an claimant's representative! I have no doubt that the ALJ union will try to deflect the long running bad deeds of these ALJ's, but at the end of the day, none of them have the proper judicial decorem to be sitting on the bench. In fact, the park bench might be too good for these rogue ALJ's.
the main problem i have with dds is they try to make credibility determinations, and of the cases that get to fed ct, the dds view of credibility winds its way into the alj's findings. so an apparent credibility conflict--that a claimant could easily clear up at hearing--becomes part of a medical "opinion" because dds pointed it out. this is a big problem, IMO, and dds needs to refrain from credibility findings (i.e., noting daily activities, etc.).
Have any of you actually appeared before these 5 ALJs on a significant basis? Because I have, and you know what? They are JUST AS BAD OR WORSE than the lawsuit alleges or their stats show. These ALJs have no compassion, no heart, and no reason, and in one or two cases, they likely have no sanity either. I fully and wholeheartedly support this lawsuit.
For anyone interested, here is the name of the class action suit:
Padro et al v. Astrue
You can access the complaint through PACER.
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