The New York Times reported yesterday on an 83 page class action lawsuit filed in federal district court alleging systemic anti-claimant bias, consistent flawed decision-making, and routinely intemperate conduct by Administrative Law Judge's (ALJ's) during hearings for claimants seeking disability benefits at the Queens, NY Office of Disability Determination & Review (ODAR) .
The lawsuit seeks to disqualify the named ALJ's from hearing any new cases in the future. The five ALJ's named in the lawsuit are Hearing Office Chief Administrative Law Judge David Z. Nisnewitz, and ALJs Seymour Fier, Marilyn P. Hoppenfeld, Hazel C. Strauss and Michael D. Cofresi.
ALJ's Margaret Pecoraro, Sol Wieselthier and Gal Lahat from the Queens office were not named as offending ALJ's, and I can personally attest to their fairness and proper judicial temperament. These ALJ's, along with the vast majority of ALJ's across the country, should not have their good reputations tarnished by the five rogue ALJ's named in the lawsuit.
Specifically, the lawsuit states that higher federal court judges have found:
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Proceedings that were "a far cry" from the required standards;
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Conduct that "raises the possibility that the ALJ was not seeking to neutrally develop the record, but rather to find support for the conclusions he had already formed"
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Analysis that was "deficient" and "incoherent"
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Delay that was "particularly egregious"
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Rationale that was "plucked from thin air"
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Analysis that "trivializes plaintiff's impairments"
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Overall conduct that demonstrates "serious negligence and could possibly even suggest bias"
In my opinion, this lawsuit is long overdue. Chief Judge David Z. Nisnewitz is well known by claimant representatives for his "bullying" tactics in the courtroom. I have personally seen him reduce disabled women and Latino claimants to tears by his badgering, gruff, prosecutorial, openly scornful and doubting questioning during the course of so called "non-adversarial" hearings.
Below is federal District Court Judge Irizarry's description of a hearing handled by ALJ Nisnewitz in the case of Ginsberg v. Astrue, 2008 WL 3876067(EDNY Aug. 18, 2008).
"Here, the ALJ's questioning of medical expert Dr. Buganza was a study in combative questioning, which hampered the truth seeking process. The ALJ repeatedly interrupted Dr. Buganza as he attempted to answer the ALJ's questions. (SeeA.R.
263-67.)
Moreover, the ALJ asked leading questions in order to elicit the responses he apparently wanted or expected to hear, andyet he offered the caveat “I don't want toput words in your mouth .... You're the doctor. You're the expert. You got to tellme.”(A.R.267.)
The ALJ even appeared to be offering his own testimonyregarding what he observed from Dr. Levine's records; it is telling that, during Dr. Buganza's testimony, the ALJ spoke far more about his observations concerning Dr. Levine's records than Dr. Buganza did. (See A.R. 263-67.)
When Ms. Barish attempted to cross-examine Dr. Buganza, the
ALJ repeatedly interrupted, effectively preventing Ms. Barish from completing her cross examination. (A.R.268-70.)
At one point, Dr. Buganza appeared to state that he believed Plaintiff did suffer from CFS. (A.R.270.) The ALJ interrupted him in the middle of his response, stating, “That's not
what this-you have to meet the criteria.”(A.R.270-71.)
In objection to the ALJ's interruption, Ms. Barish asked the ALJ,“Can he finish what he's saying?”(A.R.271.) The ALJ responded, “No, I'm finished. I'm, I'm, I'm examining.”(A.R.271.)
The ALJ's method of questioning Dr. Buganza was a far cry from satisfying his obligation to “scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.”See Robinson,733 F.2d at 258.
Furthermore, his persistent interruptions of Ms. Barish's cross-examination of Dr. Buganza, which resulted in virtually no cross-examination at all, prevented the record from being adequately developed, particularly with respect to Dr.Buganza's expertise in the area of CFS.
Given that the ALJ clearly relied heavily on Dr. Buganza's testimony, the Commissioner's decision is also vacated for the reasons stated in this subsection, and remanded forproper development of Dr. Buganza's testimony."
Is this a fair hearing? Is this due process? Is this justice? Of course not!
But it is the typical bullying behavior by Chief Judge Nisnewitz - and it has been going on for years.
A few years ago, he took on my client, a hero NYC fireman with severe burns who had been in the Cornell Burn Unit for months. The reason -the fireman had promised his six year old daughter he would take her to Disney World when he was feeling better. Judge Nisnewitz, in his own "Disney World", denied the claim saying essentially that anyone who could go to Disney World was not disabled.
On appeal to the federal courts, the US Attorney for the Eastern District refused to defend the case for Social Security, and allowed current Eastern District Chief Judge Raymond J. Dearie to reverse ALJ Nisnewitz and pay the case without the need for further proceedings.
Knowing the harm caused to disabled claimants regularly by these five ALJ's, Bar Associations and disability advocacy groups from around New York City are now lining up to file amicus briefs in support of this lawsuit as we speak. The lawsuit is the hot topic on Social Secity blogs around the entire country. See here, here, here and here.
This lawsuit was filed by the Urban Justice Center with the help of Gibson Dunn, one of the nation's top litigation law firms, on a pro bono basis. Gibson Dunn Partner Jim Walden is spearheading the lawsuit and has an impressive record of success in public interest litigation. He also is a former prosecutor in the US Attorney's Office for the Eastern District.
Social Security Commissioner Michael Astrue is an extremely smart and fair man. I have personally spoken to him at a national disability law conference. So is Loretta Lynch, the current US Attorney for the Eastern District of New York.
Will they defend these five rogue ALJ's who consistently deny due process to disabled claimants in Queens, New York? I'm betting they are too smart for that. Fortunately, Social Security can't avoid the litigation by simply paying the claimant's named in the lawsuit. There are scores more claimants in the same position sitting in the file cabinets of every Social Security Disability Attorney in NYC.
The money the federal government will save by not having to defend unnecessary appeals and litigation caused by just these five ALJ's would significantly reduce the federal deficit! Isn't that onsomeone's agenda these days?!
