Judge Remands Queens Claims to New ALJs

December 18, 2011

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

In the June 2011 edition of the Disability Law News, we reported on a class action lawsuit filed in U.S. District Court for the Eastern District of New York alleging systemic bias on the part of five of the      Administrative Law Judges (ALJs) in the Queens ODAR (Office of Disability Adjudication and Review) office.  The lawsuit, Padro et al v. Astrue, claims, among other things, that the ALJs have continued to blatantly and intentionally issue denials based on errors of law despite repeated warnings from the judges in the Eastern District.

The judges continue to issue their warnings.  On October 11, 2011, Judge Allyne Ross, in remanding a claim for further development, agreed with the plaintiff that remand to a different ALJ was appropriate.  The original ALJ, who is one of the five named ALJs in the Queens lawsuit, not only failed to develop the record; he also exhibited hostility to towards the plaintiff with repeated inquiries into her language skills and reliance on an interpreter despite her recent naturalization as a U.S. citizen.

The Court faulted the ALJ for disregarding a mental impairment questionnaire that appeared to be from the treating psychiatrist because it was unsigned and did not name the source.  Similarly, he ignored another questionnaire limiting the plaintiff because it “did not provide any clinical findings or observations.”  In fact, the report included the answer “see attached” at several important points, although failed to include an attachment.  The Court held that these were significant gaps in the record that the ALJ was obligated to reconcile.

In addition to the gaps in the record, the ALJ also  explicitly tied his credibility determination to the plaintiff’s alleged inability to communicate in English despite having passed her citizenship test.  The Court held that the plaintiff’s prior naturalization did not rationally support a conclusion that she should be able to understand the complicated legal proceedings at the hearing.

The ALJ’s focus on the plaintiff’s ability to speak English, failure to apply the treating physician rule and properly develop the record caused the Court to question his impartiality.  It found that “a fresh look by another ALJ would be beneficial.”  It rejected the Commissioner’s objection that the plaintiff had failed to seek disqualification of the ALJ at the earliest   opportunity in the administrative proceedings.  Additionally, it found that the plaintiff had properly raised the claim to the Appeals Council when she challenged the ALJ’s credibility determination. Yolanda Giraldo v. Astrue, Case 1:10-cv-012505-ARR is available as DAP #545.

Judge Ross issued a similar decision in August 2010, remanding a decision by another of the Queens ALJs to a different ALJ, again citing the standard set forth in Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004):

(1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party.

In Lawler v. Astrue, Case 1:09-cv-01077-ARR, the ALJ failed to assess evidence from the treating physicians impartially, demonstrated an incomplete understanding of the definition of sedentary work, and failed to consider plaintiff’s request for a closed period of disability.  Although the Judge found persuasive evidence of disability for a closed period, she remanded the claim for consideration of disability through the plaintiff’s date last insured to a different ALJ.  In addition to disregarding the law, the first ALJ exhibited bias and inappropriate hostility toward the plaintiff.  Following the hearing but before the decision, he ordered an investigation by SSA’s Office of the Inspector General.  He warned plaintiff’s counsel that the investigation could result in indictment of the plaintiff as well as immigration problems. 

Chris Bowes of CeDar represented the plaintiff in Lawler, which is available as DAP #546.