Archives

Archives: 4/2/2007 – 8/29/2007


Harris  v. Astrue, No. 2:06-C-222 (N.D. IN Aug. 27, 2007). The Court  issued a remand in this case because the ALJ failed to support his refusal to rely on the treating physician’s opinion and failed to consider Plaintiff’s borderline mental functioning when determining RFC.  As a result, the Court found the ALJ’s hypotheticals to the VE were deficient.  Additionally, the Court states that the ALJ inappropriately relied on a non-specific hypothetical and the ALJ should have asked the VE whether her testimony was consistent with the DOT after rather than before testifying.  Ms. Harris was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

Lavin v. Astrue, No. 01-C-8836 (N.D. IL Aug. 22, 2007). The Court  issued a remand in this case because the ALJ erred by misconstruing Plaintiff’s daily activities as evidence that he could perform work contrary to the case law of this Circuit.  Mr. Lavin was represented by Marcie E. Goldbloom with assistance from Violet Borowski.

Nichols v. Astrue, No. 02-C-7099 (N.D. IL Aug. 16, 2007). The Court issued a remand in this case because the ALJ: failed to follow SSR 82-41 by not identifying transferable skills and providing evidence to show that jobs existed in significant numbers, failed to make clear whether he considered any nonexertional mental impairments or the effect of them upon the grid rules; did not build a logical bridge from his assessment of Plaintiff’s and her husband’s testimony to his credibility conclusion; and failed to consider a treating opinion or state why he disregarded it.  Ms. Nichols was represented by Frederick J. Daley, Jr.

Pierik v. Astrue, No. 06-C-6750 (N.D. IL Aug. 14, 2007). The Court  issued a remand in this case because the ALJ did not have substantial evidence to support his decision to disregard favorable and treating evidence of record, give controlling weight to non-treating doctors, to discount the VE’s testimony that Plaintiff was disabled and to find Plaintiff not credible.  The Court also specifically noted that the ALJ played doctor in determining what the evidence showed.  Mr. Pierik was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

posted 8/29/2007


Diaz v. Prudential Ins. Co. of America,  No. 06-3822 (7th Cir. Aug. 23, 2007). The Seventh Circuit reversed the District Court’s decision. Mr. Diaz was represented by Mark DeBofsky with assistance from James Comerford.

posted 8/23/2007


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on August 13, 2007: Ruling restores some balance to ERISA cases Click on the link to read the article.

posted 8/13/2007


Groen v. Barnhart, No. 04-C-8232 (N.D. IL Aug. 2, 2007). The Court  issued a remand in this case because the ALJ made an erroneous credibility finding that made inappropriate assumptions and failed to follow SSR 96-7p, failed to discuss and ignored the evidence presented by a treating doctor, played doctor and failed to fully and fairly develop the evidence, erroneously found Groen able to perform jobs with only one weak hand half a day without vocational testimony supporting such a conclusion, and failed to consider Groen’s borderline age.  Mr. Groen was represented by Frederick J. Daley, Jr. and Marcie E. Goldbloom.

Pasha v. Astrue, No. 3:06-C-705 (N.D. IN July 31, 2007). The Court  issued a remand in this case because the ALJ erred in finding Pasha’s somatoform disorder not severe, failed to discuss Pasha’s pain disorder and failed to consider her pain when making credibility determinations.  Ms. Pasha was represented by Frederick J. Daley, Jr. with assistance from law clerk Kate Hoppe. 

posted 8/7/2007


Mark DeBofsky was named an Employee Benefits Co-Chair for the ABA Employee Benefits Committee and wrote an article entitled “Erisa Litigation and Due Process,” which appeared in the Summer 2007 newsletter.  Click here to read the article.

Mark DeBofsky’s article, Disability Insurance Under the ERISA Law: Economic Security or Litigation Nightmare? was published in the Journal of Insurance Regulation Summer 2007 issue, Volume 25, No.4.

Powers v. Barnhart, No. 06-cv-5320 (N.D. IL July 25, 2007). The government declined to brief the case, but instead agreed to a voluntary remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Ms. Powers was represented by Frederick J. Daley, Jr. with assistance from law clerk Suzanne Blaz.

Lipke v. Astrue, No. 06-C-675 (W.D. WI July 24, 2007). The Court  issued a remand in this case because the ALJ failed to consider all of the treating physician’s opinion, failed to indicate why the State agency doctors’ opinions were more consistent with the evidence than that of the treating physician and made an inadequate credibility determination.  Mr. Lipke was represented by Frederick J. Daley, Jr. with assistance from Heather Aloe.

Gardenhire v. Astrue, No. 3:06-cv-744 (N.D. IN July 18, 2007). The Court issued a decision remanding this case on a motion to alter or amend judgment because the ALJ failed to perform a proper MRFC as required by SSR 96-8p and 20 C.F.R. sec. 404.1520a.  Ms. Gardenhire was represented by Frederick J. Daley, Jr. with assistance from Heather Aloe.

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on July 16, 2007: Unfair ruling against reasoning behind ERISA Click on the link to read the article.

Murphy v. Astrue, No.  06-2422 (7th Cir. July 13, 2007). The Seventh Circuit  issued a remand in this children’s disability case because the ALJ ignored substantial evidence and his credibility determination was not supported by the record  Mr. Murphy was represented by Marcie E. Goldbloom with assistance from attorney Heather Aloe.

posted 7/27/2007


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on July 2, 2007: Insured’s silence not enough Click on the link to read the article.

Arnett v. Barnhart, No. 3:06-cv-744 (N.D. IN July 3, 2007). The government declined to brief the case, but instead agreed to a voluntary remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Mr. Arnett was represented by Frederick J. Daley, Jr. with assistance from law clerk Kate Hoppe.

posted 7/3/2007


David A. Bryant presented “Medicaid and Medicare Liens, ERISA Health Insurance, & Long-Term Disability Offsets” on June 15, 2007 and June 29, 2007 for the IICLE Personal Injury Practice Update.

posted 6/30/2007


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on June 18, 2007: No reason to deny jury trials for ERISA claims Click on the link to read the article.

posted 6/18/2007


Eldridge v. Astrue, No. 2:06-C-301 (N.D. Ind June 15, 2007). The Court  issued a remand in this case finding that the ALJ: erred in finding Mr. Eldridge was coached and for failing to consider his mental impairments may have led to his being fired; made an unsupported finding that Mr. Eldridge was not credible because he previously held a job while suffering from panic attacks; and failed to incorporate Mr. Eldridge’s panic attacks and need for breaks into his RFC finding and hypotheticals resulting in an erroneous Step Five finding.  Mr. Eldridge was represented by Frederick J. Daley, Jr. with assistance from law clerks Kate Hoppe and Suzanne Blaz. 

Begolke v. Astrue, No. 06-C-445 (W.D. WI June 8, 2007). The Court  issued a remand in this case because the ALJ failed to cite accurate and logical reasons for rejecting Plaintiff’s credibility about her asthma symptoms and for dismissing the opinion of plaintiff’s long-term treating physician. The ALJ also failed to undertake a careful evaluation of the medical evidence and made a deficient RFC finding because it failed to take into consideration Plaintiff’s obesity as required by SSR 02-1p and failed to follow SSR 96-8p by stating what evidence he relied upon in making his RFC finding. Ms. Begolke was represented by Marcie E. Goldbloom and Heather F. Aloe

David A. Bryant gave a presentation with Jonathon Feigenbaum at the American Conference Institute’s (ACI) Disability Claims & Litigation Conference, which was held June 5-8, 2007.

posted 6/15/2007


Aurand v. Astrue, No. 05-C-50241 (N.D. IL May 31, 2007). The Court  issued a remand adopting the Magistrate Judge’s Report and Recommendation in this case because the ALJ: failed to include any mental limitations into the hypotheticals as required by SSR 96-8p; failed to properly rate Mr. Aurand’s symptoms and incorporate them into the hypotheticals; and made erroneous Step 4 and 5 determinations.   Mr. Aurand was represented by Frederick J. Daley, Jr. with assistance from law clerk Suzanne Blaz. 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on June 4, 2007: Insurance adjuster wins bid for disability benefits Click on the link to read the article.

posted 6/4/2007


On May 10, 2007, David A. Bryant and Gregory Benker presented a 4 hour talk at the Kansas Trial Lawyer’s Association’s Women’s Caucus called “Lien on me” about ERISA and Medicare Liens.

posted 5/10/2007


On May 4, 2007, Mark DeBofsky gave a 10 minute presentation on long-term disability insurance at the “10 Minutes, 10 Bucks, 10 Legal Topics for the General Practitioner” at the Illinois State Bar Association seminar.

On May 2, 2007, Mark DeBofsky spoke at the ABA ERISA Basics Seminar held in Chicago, Illinois.

posted 5/4/2007


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on April 30, 2007: Big Step Toward Clearing Up ERISA Litigation Click on the link to read the article.

posted 4/30/2007


On April 25, 2007, Mark DeBofsky presented his paper “What Process is Due in the Adjudication of ERISA Claims?” at the 5th Annual Employee Benefits Symposium at John Marshall Law School.  Mark’s paper discusses the following:

The litigation of employee benefit claims under the ERISA law has been transformed since the issuance of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) into a summary adjudicative process.  Courts have characterized ERISA civil actions brought pursuant to 29 U.S.C. Section 1132(a)(1)(B) as “review proceedings” and have ruled that the determination of claims is based on the review of an “administrative record.”  This article examines the current approach taken by the courts and criticizes the misapplication of an administrative law framework and the denial of procedural due process, with life and death consequences in many cases.

posted 4/25/2007


Evans v. Barnhart, No. 3:06-C-315 (N.D. IN April 13, 2007). The Court  issued a remand in this case because the ALJ: did not obtain a proper waiver of Plaintiff’s right to an attorney; did not fully and fairly develop Plaintiff’s case; failed to consider her fatigue and Raynaud’s syndrome; failed to properly consider all of the effects of Plaintiff’s Lupus on her ability to work; and made a flawed credibility determination.  Ms. Evans was represented by Frederick J. Daley, Jr. with assistance from law clerk Benjeman Nichols. 

On April 14, 2007, Mark DeBofsky presented “Insurance and Employment: Know Your Rights” with Susan Loeb at the Blood & Marrow Transplant Information Network’s “Celebrating a Second Chance at Life” symposium for Bone Marrow, Stem Cell, and Cord Blood Transplant Survivors.

posted 4/16/2007


McKinney v. Barnhart, No. 05-C-5276 (N.D. IL April 6, 2007). The Court  issued a remand in this case because the Appeals Council: erred in finding there to be a constructive trust; failed to support its determination that there was an agency relationship between the trustees and the beneficiary (Ms. McKinney’s son) with any evidence or specific facts or reasoning; and failed to consider Illinois law governing the trust.  Additionally, the Court noted that the ALJ’s failure to consider the settlor’s intent was a fatal error, and stated that both the ALJ and Appeals Council failed to develop the record regarding the oral trust.  the Court instructed that a new ALJ been appointed upon remand because of the ALJ’s treatment of Ms. McKinney at the hearing.  Ms. McKinney was represented by David A. Bryant with assistance from Gregory Benker and Suzanne Blaz.

posted 4/10/2007


Guilty v. Barnhart, No. 06-C-3545 (N.D. IL April 4, 2007). The Court  issued a remand in this case because the ALJ ignored variations on hypotheticals supported by the ALJ’s own Step Two finding and a State agency RFC, which the VE testified would result in a finding of no work at Step 5.  The Court also indicated that the ALJ should account for Plaintiff’s depression in the hypotheticals and follow SSR 00-4p upon remand.  Ms. Guilty was represented by Frederick J. Daley, Jr. with assistance from Barbara Borowski.

posted 4/4/2007


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin‘s Workplace Issues section on April 2, 2007: Is expediency more important than accuracy? Click on the link to read the article.

posted 4/2/2007


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