ALJ’s DA&A Materiality Finding Overturned
January 1, 2009
Author: Catherine M. Callery (Kate)| Louise M. Tarantino
Ann Biddle, Esq., Paul M. Ryther, Esq.
Some ALJ decisions can be truly mind boggling - and sometimes even the Appeals Council seems to recognize that. Case in point: a recent decision received by Al Lowman of Legal Advocacy for the Disabled at Erie County Department of Social Services in which the ALJ had determined that DA&A (drug or alcohol addiction) was material because the claimant was addicted to methadone. As Al succinctly put it to the Appeals Council, “[h]ow is claimant’s participation in a Methadone program and her compliance with her prescribed treatment plan material to her disability?”
The Appeals Council saw the light, finding that the ALJ’s conclusion that Methadone addiction was material was not supported by substantial evidence. It noted “that Methadone is commonly prescribed to treat opioid addiction and opioid withdrawal. Further, if Methadone is withdrawn from the medication regiment for such patients, opioid relapse would not necessarily be uncommon.” It found no medical evidence that the claimant was “addicted” to Methadone.
The same ALJ also blithely rejected evidence of the claimant’s treating physician because, according to his own handwriting analysis, the doctor’s signature on his assessments differed from that in his entry notes. [Editor’s note: this seems to a “signature” trick on the part of this particular ALJ.] The Appeals Council agreed with Al that the ALJ could not make this assessment without contacting the treating physician.
Finally, the ALJ rejected helpful reports from a Clinical Social Worker because she was not a medical doctor. Once again, the Appeals Council agreed with Al that the ALJ should have weighed the evidence from the social worker under Social Security Ruling (SSR) 06-3p. One wonders where the ALJ has been since the SSR was issued in 2006?
The Appeals Council remanded the claim for consideration of these and other factors overlooked or misjudged by the ALJ. Congratulations to Al for calling the ALJ to task on these blatant errors.
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