Court Approves Remand to Different ALJ

November 16, 2009

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

In a contentious case challenging termination of child’s SSI benefits, plaintiff requested that a stipulated remand from the federal court should be assigned to a different Administrative Law Judge (ALJ) because of a showing of bias, prejudice and hostility to plaintiff and her counsel by the original ALJ.

In the case of Ocasio v. Astrue, 2009 WL 2905448 (S.D.N.Y. September 4, 2009), the District Court Judge agreed that the ALJ’s animosity toward plaintiff’s counsel “tainted aspects of his determination,” and took the unusual step of ordering a remand to a different ALJ. The judge also determined that the ALJ’s favorable finding of disability for a short period of the total claimed period of disability should not be disturbed in any remand proceeding.

This case is instructive for advocates who practice in federal court on several issues. First, in cases where the Commissioner offers a stipulation of remand, it is imperative that plaintiff’s counsel ensure that the remand proceedings are consistent with the claimant’s best interests in the case. Here, for example, since the Commissioner would not agree to remand the case to a different ALJ voluntarily, it was incumbent upon plaintiff’s counsel to either file a formal motion for remand to a different ALJ, or to oppose the defendant’s motion and specifically ask for this relief. Keep in mind, however, that most District Court judges see remand to a different ALJ as an extreme remedy, and will not issue the order without compelling reasons. This case presented those compelling reasons.

Second, the only way to protect a favorable portion of the ALJ decision on remand is to request that the federal court include in its order some limitation of the scope of review on remand, as the District Court judge did in this case. This result will not happen automatically, so plaintiff’s counsel must ensure that the proper language is included in the stipulation for remand, or must file a motion or opposition asking for this relief.

Mike Hampden of the Partnership for Children’s Rights represented the plaintiff in Ocasio. Congratulations to him for a fine job in this case.