Appeals Council Reverses “Intemperate” ALJ

March 1, 2009

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

Ann Biddle, Esq., Paul M. Ryther, Esq.

How often does the Appeals Council reverse an ALJ’s finding that a claimant can do work at the medium exertional level and replace it with its own determination that she is unable to perform even sedentary work?  Not often – but that is exactly what happened in a case ably handled by Neighborhood Legal Services paralegal Buffalo Bruce Caulfield.  We emphasize the paralegal in Bruce’s title since that seemed to be the particular focus of the ALJ’s ire in this case.
 
In a case involving a 38-year-old Spanish speaking woman, Bruce argued to the Appeals Council that the ALJ, who was a “visiting” Administrative Law Judge from Johnstown, Pennsylvania, had ignored substantial evidence of record documenting the claimant’s myriad of physical and mental impairments in determining residual functional capacity (RFC).  He also argued that the ALJ improperly failed to give controlling weight the claimant’s treating physicians, both medical and psychiatric.  The Appeals Council basically adopted Bruce’s arguments in finding the claimant disabled.
 
That only tells a portion of the story in this case, however.  Bruce also argued that the ALJ’s attempts to intimidate him raised serious questions of bias on the part of the ALJ.  Although the Appeals Council ultimately refused to find evidence of bias, it agreed that the ALJ’s “tone was harsh and his extraneous comments in corresponding with the representative were unwarranted.”  What an understatement!
 
In the course of the long and tortuous history of this case, the ALJ, among other things, overruled Bruce’s objections to vocational expert interrogatories (which was simply an attempt on Bruce’s part to clarify compound questions posed by the ALJ), and excluded proferred evidence.  In so doing, he took every opportunity to make harsh and extraneous comments!  Take, for example, the ALJ’s response to Bruce’s attempt to clarify the interrogatories:  since it is apparently “understood that a staff paralegal may not have the same training and expertise as an attorney, the objections border on the frivolous…[and] are overruled with caution to the paralegal representative to confine his conduct to professional standards.”
 
Things went downhill from there. Following the objections raised by Bruce’s supervising attorney, Alan Block, the ALJ wrote: “this cause has dragged on for too long and this person has remained on New York State Welfare while the case has dragged on.  I’m not certain the legislators who fund your legal services would be overjoyed to see how much ‘zealous representation’ has been invested in this cause by the paralegal representative.” 
 
When Bruce offered new exhibits in a timely manner, the ALJ claimed that he “is playing a litigation game just to see how many times he can get away with disrupting the decision cycle of this case.  Apparently the paralegal representative hopes he can goad the undersigned into an intemperate response which can be presented to the appellate authorities as ‘bias’…A representative who plays the delay game may now commit legal malpractice and lose the claimant’s case entirely.”
 
Apparently it didn’t take much to drive this ALJ to “intemperate” behavior, but he was certainly wrong in predicting that this very accomplished paralegal’s zealous representation would lose the case entirely!  Copies of the communication between Bruce, Alan and ALJ, as well as the decisions in this case make for entertaining - if not appalling - reading, and are available on the Online Resource Center as DAP #515.