Abuse of Discretion Leads to Remand

December 18, 2011

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Do you think Administrative Law Judges (ALJs) spend as much time complaining about advocates as we spend complaining about them?  For a long time, it seemed that all we could do was complain but   never get any relief from ALJs who seemed biased or prejudiced against our clients, or who abused their discretion during the hearing process.  Two recent Appeals Council decisions give us some hope that maybe we are no longer just “spitting into the wind” with these cases.

Advocate Cindy Hendrickson of the Legal Aid Society of Mid-New York complained to the Appeals Council when ALJ Koennecke of the Syracuse ODAR denied a case that was remanded from federal court back to the same ALJ for further proceedings.  Cindy noted that her client, aged 51-54 during the proceedings, had a grade school education in Puerto Rico and spoke almost no English.  Past relevant work was in a school cafeteria, which was medium work.  The claimant had back problems and confirmed neuropathy in her legs due to diabetes, as well as severe depression and anxiety, with reports stating her abilities were “poor” in multiple areas.

Despite the federal court’s mandate that the ALJ’s previous finding of ability to do medium work was not supported by substantial evidence, the ALJ again found that the claimant could do medium work (with no new evidence to support the conclusion).  On appeal, the Appeals Council determined that ALJ Koennecke’s refusal to abide by the federal court remand would be referred to another component of the Appeals Council for further investigation.  On remand to a different ALJ, the claimant got a fully favorable decision.

Cindy also reported that she has a second decision from this ALJ on appeal to the Appeals Council for a comparable failure to abide by a federal court remand. She is hopeful that the Appeals Council will give her a similar result, remand to a different ALJ and investigation of the ALJ’s refusal to follow federal court directives.

Another advocate, Diane Campbell of LAW-NY in Ithaca, was also successful in getting the Appeals Council to remand an unfavorable decision from ALJ Koennecke to a different ALJ.  In Diane’s case, the Appeals Council found that the ALJ had abused her discretion in failing to accept that a claimant had   environmental limitations - avoiding exposure to respiratory irritants - simply because the clamant was a smoker - without full consideration of the claimant’s COPD.  The Appeals Council also noted that it was referring the claimant's allegation of bias “to another component to separately review, investigate and take any internal action(s) it deems appropriate.”

These are difficult cases with delicate issues related to claims of bias or abuse of discretion on the part of a presiding ALJ.  Congratulations to both Cindy and Diane for persevering, persisting and prevailing on these cases.  Their success gives us hope that our complaints regarding ALJ bias issues may finally being heard and acted upon.