Appeals Council Remands to Different ALJ

June 14, 2010

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

In another example of achieving the almost impossible, LJ Fisher of the Rochester office of the Empire Justice Center obtained a remand from the Appeals Council ordering that the claim be assigned to a different Administrative Law Judge (ALJ).  Her client, who has HIV disease, first applied for SSI on February 18, 2004, and was denied by the ALJ on June 28, 2008.  LJ had argued that he met 14.08N (now K) or alternatively lacked the RFC (residual functional capacity) for even sedentary work.

LJ appealed, and in light of the complexity of the medical evidence and issues, submitted a longer than usual memorandum.  She argued that the ALJ failed to consider properly the evidence under the HIV listing.  She pointed out that the ALJ’s RFC finding was not supported by substantial evidence.  The ALJ had also improperly asserted that the claimant’s illness was a result of failure to follow prescribed treatment.  The ALJ, however, failed to take into consideration the side effects of the claimant’s medications.  Additionally, the ALJ’s assertion that the claimant’s use of drugs and alcohol was material was not based on substantial evidence.  Finally, LJ argued that there was evidence of ALJ bias.

Once again, while the appeal was pending, the claimant was found disabled on a subsequent claim on November 13, 2008.  On April 27, 2010, the Appeals Council issued a decision affirming the finding of disability on the subsequent application and further finding that the claimant became disabled on October 5, 2007, under HIV listing 14.08B2 due to his fungal infections.  The Appeals Council remanded the claim for further consideration of the period prior to October 5, 2007.  Most significantly, upon review of the record and the recording of the hearing, the Appeals Council found that some of the ALJ’s questions and comments appeared to be inappropriate, and send the case back to a different ALJ.

During the hearing, the ALJ had been rude, asking the client why he had children if he could not support them.  He also repeatedly asked where the client got money for cigarettes and drugs, even after the client answered him.  He argued with the client, insisting that the client was not being treated for Hepatitis C even though both the client and LJ explained that one of the HIV medications he was taking was also used to treat his Hepatitis C. (Post hearing, LJ submitted a letter showing where that information appeared in the record as well as a Medline Plus article describing the treatment.)  The ALJ also opined that the client could walk, although he was using a prescribed scooter at the time.  He demanded the prescription for the scooter be submitted.

If that were not enough, in the decision, the ALJ wrote:

The record demonstrates that although hundreds of thousands of dollars of public funds paid for by taxpayers have been expended for two decades or more upon claimants [sic] treatment of HIV+/AIDS, the claimant remains non-compliant with treatment, medications, an [sic] appointments for his HIV, refuses treatment for his addictions and substance dependence, and continues to indulge his gratifications at public expense.  This case falls within the meaning of PL 104-121 and the intent of congress in promulgating such rule.  In effect, Congress has said ‘Enough.’”  And, again if that were not enough, the ALJ added,  “Nor can the claimant’s bunion and hammertoe be treated by riding around on a scooter and taking vicodin, while ignoring other treatment options . . .

Among other things, LJ reminded the Appeals Council of the provisions of HALLEX admonishing ALJs to avoid emotionally charged decisisons. According to HALLEX I-2-8-25D, for example, “[t]he ALJ must not use emotionally charged words; e.g., “malingerer,” “hypochondriac,” etc.”; nor should he “use the decision as a forum for criticizing other government components, the courts, the representative or the claimant.”  Since this ALJ did that and more, the Appeals Council wisely chose to remand the claim to a different ALJ that we hope will be more temperate in his conduct and decision.

Way to go, LJ!