Appeals Council Remands To Resolve ALJ Errors

Empire Justice Center October 31, 2019

Attorney Mike Telfer of the Legal Aid Society of Northeastern New York (LASNNY) in Albany reports another Appeals Council victory.  Mike appealed an Administrative Law Judge (ALJ) decision, arguing that the ALJ had misstated the record. The claimant’s treating source had stated her client could work a maximum of twenty hours per week, but only with special assistance. The ALJ, however, asserted the claimant told her treating physician she wanted to work more than twenty hours a week, which was erroneous. The claimant in fact reported to her doctor that she was only working four to five hours per week. The ALJ also focused on a statement that the claimant’s productivity was 100% of other employees, but did not adequately address the supervisor’s assessment that she could only achieve this with special assistance.


The ALJ also erred in discounting the opinion of a treating therapist, claiming he had only seen the claimant on one occasion when he had actually had treated him in at least seventeen therapy sessions. The ALJ failed to address several components of the consultative examiner’s opinion that were more limiting than the ALJ’s ultimate residual functional capacity (RFC) assessment. And the ALJ failed to mention or address several other medical opinions of record.


Finally, the ALJ acknowledged the claimant would need ready access to a restroom given his history of abdominal pain secondary to diverticulitis. The ALJ failed, however, to specify whether the need for access translates into a need for breaks in excess of the break time normally allowed employees, and if so, the number and length of the breaks.


Based on these many factual errors Mike pointed out, the Appeals Council remanded the claim for further consideration of the medical source opinions and the claimant’s work supervisor, as well as vocational testimony. Mike obviously did a great job of comparing the ALJ’s decision with the evidence of record.