Archives

Archives: 1/9/2006 – 2/28/2006


Mendez v. Barnhart, No. 05-2017 (7th Cir. February 28, 2006). The Seventh Circuit found that the ALJ failed to properly determine whether Ms. Mendez met Listing 12.05(c) because he erroneously found her IQ scores to be at 70 or above when they ranged from 68 to 71. The Court held that this was a fatal error because Ms. Mendez had further physical or mental impairments that could meet the second part of 12.05(c). Additionally, the Court found that the ALJ had improperly determined that Ms. Mendez was not credible based on her ability to do household activities, and that the ALJ had also failed to consider the totality of Ms. Mendez’s impairments. Ms. Mendez was represented by Frederick J. Daley with assistance from attorneys Heather Aloe and Barbara Borowski.

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on February 27, 2006: Courts differ over weighing pain credibilityClick on the link to read the article.

posted 2/28/2006


Sutton v. Barnhart, No. 1:05-cv-003631 (N.D. IL February 21, 2006). This case was remanded pursuant to sentence four because: Ms. Sutton did not knowingly and intelligently waive her right to counsel; the ALJ did not fully and fairly develop and weigh the evidence of record when he had a heightened duty to do so because the claimant was not represented; and the ALJ failed to follow SSR 00-4p and ascertain whether the VE’s testimony conflicted with the DOT. Ms. Sutton was represented by Frederick J. Daley with assistance from law clerk Candace Warnock.

Hackman v. Barnhart, No. 2:04-cv-00169 (N.D. IN February 16, 2006). This case was remanded pursuant to sentence four because the ALJ invented facts rather than recontacting Mr. Hackman’s treating doctor about the need to elevate his legs. Furthermore, the Court noted that the ALJ’s credibility findings were “troubling” and needed to be corrected on remand. Mr. Hackman was represented by Frederick J. Daley with assistance from law clerk Suzanne Blaz.

Nunez v. Barnhart, No. 2:04-cv-00453 (N.D. IN February 16, 2006). This case was remanded pursuant to sentence four because: the ALJ’s Step Two finding that Mr. Nunez’s mental impairment was not severe was not supported by substantial evidence; the ALJ failed to consider whether Mr. Nunez’s mental impairment met a Listing; the ALJ’s RFC finding failed to properly take into consideration both the mental impairments and peripheral neuropathy; the ALJ failed to explain his reasons for rejecting the treating doctor’s opinion regarding pushing and pulling as well as Mr. Nunez’s need to sit and stand; and the hypotheticals to the VE were deficient because of the failure to properly incorporate all of Mr. Nunez’s limitations into the RFC. Mr. Nunez was represented by Frederick J. Daley with assistance from attorney Barbara Borowski.

posted 2/21/2006


Mark DeBofsky spoke for the claimant in a workshop called, “Enforceability of Discretionary Clauses Post-Diaz Under New State Regulations, and After the Unum Provident Settlement” on February 23, 2006, at the American Conference Institute “Litigating Disability Insurance Claims Conference.” The conference took place on February 23 & 24, 2006, in Miami, Florida.

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on February 13, 2006: Insurers not living up to ERISA duties Click on the link to read the article.

posted 2/14/2006


Jones v. Barnhart, No. 2:04-cv-00536 (N.D. IN February 1, 2006). This case was remanded pursuant to sentence four because there is new and material evidence from a treating doctor, the ALJ’s reasons for discounting the treating doctor’s opinion have no rational foundation in the record, and the ALJ misconstrued Ms. Jones’s testimony. Specifically, the court notes that the ALJ’s decision was result-oriented and that the ALJ erred in finding the treating doctor not credible and entitled to less weight merely because his opinion was based on Ms. Jones’s complaints when, in fact, the ALJ found those complaints to be credible. Ms. Jones was represented by Frederick J. Daley with assistance from law clerk Deborah Nall.

An article by Mark DeBofsky, The Disability Insurance Industry’s Attack on California’s Consumer Protection Initiative, recently appeared in the The Insurance Forum, Vol. 33, Nos. 2 & 3, 16 (February/March 2006).

Rodriguez v. Barnhart, No. 2:04-cv-00381 (N.D. IN January 31, 2006). This case was remanded pursuant to sentence four because the ALJ failed to inquire into Mr. Rodriguez’s reasons for not taking his medications or complying with his diabetic diet as is required by SSR 96-7p. Mr. Rodriguez was represented by Frederick J. Daley with assistance from law clerk Suzanne Blaz.

McCarthy v. Barnhart, No. 2:04-cv-00369 (N.D. IN January 30, 2006). The Court found that the ALJ failed to properly determine credibility, failed to present hypotheticals with sufficient specificity to the VE, and failed to resolve conflicts between the VE’s testimony and the DOT. This case was remanded pursuant to sentence four. Mr. McCarthy was represented by Frederick J. Daley with assistance from law clerks Suzanne Blaz and Valerie Garcia.

posted 2/1/2006


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on January 23, 2006: Court finds employee was ‘totally disabled’Click on the link to read the article.

posted 1/24/2006


Marlow v. Barnhart, No. 04-C-7780 (N.D. IL January 18, 2006). The Court adopted the Magistrate Judge’s Report and Recommendation and remanded this case pursuant to sentence four. Mr. Marlow was represented by David A. Bryant with assistance from law clerk Suzanne Blaz.

Gilkey v. Barnhart, No. 04-C-2833 (N.D. IL January 18, 2006). The Court found that the ALJ failed to explain the weight given to various medical opinions in the record; failed to address portions of the ME’s testimony; and that the ALJ rendered a credibility determination that failed to comport with SSR 96-7p. The Court also expressed concern with the Step 5 VE testimony because jobs the VE had testified as being unskilled were actually semi-skilled. Ms. Gilkey was represented by Marcie E. Goldbloom with assistance from law clerk Valerie Garcia.

posted 1/19/2006


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on January 9, 2006: Documents ruling cuts access to courtsClick on the link to read the article.

Seitz v. Metropolitan Life Insur.Co., No. 05-2200 (8th Cir. January 10, 2006). The Eighth Circuit rejected MetLife’s reasons for denying benefits and ordered summary judgment for Mr. Seitz; thus, granting him benefits under MetLife’s Plan. Specifically, the Court noted that Mr. Seitz was physically unable to fulfill at least one material aspect of his past job, and held that being able to perform some job duties was insufficient grounds for a denial of benefits. Mr. Seitz was represented by Mark DeBofsky.

posted 1/10/2006


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