Archives

Archives: 6/6/2008 – 11/18/2008


Fuller v. Astrue, No. 07-cv-6992 (N.D. Ill. Nov. 14, 2008). The District Court issued a remand in this case because the ALJ failed: to build a bridge from the evidence to his RFC conclusions, ignoring an “overwhelming” list of medical records; to consider her bipolar condition, erroneously held that she was currently working, despite this not being established in the record, against her;  to consider the logical consequence of the ME’s testimony that she met a Listing “at times”; and erroneously held drug use against her.  Ms. Fuller was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

Davidson v. Astrue, No. 08-cv-209 (W.D. Wisc. Nov. 7, 2008). The District Court issued a remand in this case because the ALJ failed to incorporate all of the mental limitations into the hypotheticals.  Ms. Davidson was represented by Frederick J. Daley, Jr. with assistance from Kate Hoppe.

posted 11/18/2008


Mark DeBofsky spoke at the ABA ERISA Litigation conference held on November 6-7, 2008, in Chicago, Illinois.  He presented the Plaintiff’s side in a seminar called, “Special Topics in Welfare Litigation.”

posted 11/7/2008


Livingston v. Astrue, No. 07-cv-2202 (C.D. Ill. Nov. 5, 2008). The District Court issued a remand in this case because the ALJ: inappropriately disregard Plaintiff’s treating physicians’ opinions; gave reasons for his credibility determination that were either without foundation or contrary to the record, resulting in an erroneous and patently wrong credibility determination; impermissibly substituted his medical opinion for that of Plaintiff’s treating physicians and failed to consider all of the evidence when determining RFC; failed to provide did not provide any explanation for failing to consider the evidence regarding Plaintiff’s headaches, neck pain, and feeding tub and properly incorporate all of Plaintiff limitations into the hypotheticals to the VE.  Mr. Livingston was represented by Frederick J. Daley, Jr. with assistance from Kate Hoppe.

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on November 3, 2008:  Court finds conflict in review of claim.Click on the link to read the article

posted 11/5/2008


Mark DeBofsky spoke at the 39th Annual Meeting of the American Academy of Psychiatry and the Law at a workshop called “Detection of Malingering Disability Evaluations” on October 25, 2008 at the Westin in Seattle, Washington.

posted 10/25/2008


Echols v. Astrue, No. 07-cv-2812 (N.D. Ill. Oct. 22, 2008). The District Court issued a remand in this case because the ALJ failed to build a bridge and articulate the basis for all of her RFC determinations as well as failing to follow SSR 00-4p and address contradictory vocational evidence provided by counsel.  Mr. Echols was represented by Marcie E. Goldbloom with assistance from Kate Hoppe.

Park v. Astrue, No. 07-cv-2227 (C.D. Ill. Oct. 21, 2008). The District Court issued a remand in this case, adopting the Magistrate Judge’s R&R finding that the ALJ did not provide any explanation for failing to consider the evidence relating to the plaintiff’s COPD and breathing problems.  Mr. Park was represented by Frederick J. Daley, Jr. with assistance from Kate Hoppe.

posted 10/22/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on October 13, 2008: Claimant not required to exhaust issues.Click on the link to read the article.

posted 10/14/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on October 6, 2008:  Insurer’s own guidelines dismissed as not binding.Click on the link to read the article.

Mark DeBofsky completed a Chapter 38 for Psychology Press’s new book called, “Disability benefits adjudications: Attorneys representing disability claimants.” Neuropsychology of Malingering Casebook, 476 (Joel E. Morgan & Jerry J. Sweet eds. 2008).  You can view the Chapter by clicking here; however, it is not available for distribution.

posted 10/8/2008


Kelley v. Astrue, No. 07-cv-6350 (N.D. Ill. Sept. 26, 2008). The District Court issued a remand in this case, stating that the ALJ ignored evidence, including earlier reports and testimony, without explanation and failed to address her IRWE, contrary to SSR 83-33, when determining there was SGA at Step One.  Ms. Kelley was represented by Frederick J. Daley, Jr. with assistance from Kimberly Jones.

Oliver v. Astrue, No. 08-cv-714 (N.D. Ill. Sept. 26, 2008). 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. Oliver was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

posted 9/29/2008


On September 25, 2008, Mark DeBofsky spoke on a panel about Supreme Court ERISA Litigaiton Issues.  The panel was presented by The John Marshall Law School Center for Tax Law and Employee Benefits.

Allshouse v. Astrue, No. 07-cv-12516 (E.D. Mich. Sept. 19, 2008). The District Court adopted the MJ R&R remanding the case.  The Magistrate found that the ALJ herein failed to: consider evidence of Allshouse’s alleged plantar fasciitis and RSD as well as SSR 03-2p; properly evaluate Dr. Tracy’s opinion and evidence; and make a proper credibility determination that gives any specifics as to why Allshouse was found not credible.  Mr. Allshouse was represented by Frederick J. Daley, Jr. with assistance from Kate Hoppe.

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on September 22, 2008: Court rethinks its approach after Glenn ruling.Click on the link to read the article.

posted 9/24/2008


Matera v. Astrue, No. 07-cv-227 (D. HI Sept. 16, 2008). The District Court issued an outright reversal in this case.  Ms. Matera was represented by Frederick J. Daley, Jr. with assistance from Kimberly Jones.

Archey v. Astrue, No. 07-cv-2122 (C.D. Ill. Sept. 12, 2008). The Court adopted the Magistrate Judge’s Report and recommendation to issue an outright reversal in this case.  The Magistrate Judge found that the ALJ did not take into account the time Archey needed to undergo and recover from phlebotomy treatments, which rendered him off task significantly enough that, based upon the VE’s testimony in the case, there would be no work he could perform due to these excessive absences.  Mr. Archey was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

Henriksen v. Astrue, No. 07-cv-6142 (N.D. Ill. Sept. 9, 2008). The Court issued a remand in this case because the ALJ: ignored the assessment of a psychological consultative examiner, failing to build a bridge from the evidence to his conclusions; and exaggerated Henriksen’s level of daily activities and employed that exaggeration as a basis for finding her not credible. Ms. Henriksen was represented by Marcie E. Goldbloom with assistance from Suzanne Blaz.

Gaylor v. Astrue, No. 07-2206 (7th Cir. Sept. 8, 2008). The Seventh Circuit remanded this case for further proceedings.  In its decision, the Seventh Circuit found that the ALJ did not properly evaluate and consider the evidence of record and discredited the manifest weight of the evidence with only minimal explanation, failing to build a bridge from the evidence to his conclusions.  As a result, the ALJ’s credibility determination, which relied predominantly on his erroneous reading of the medical evidence, could not be upheld.  Also, the ALJ’s credibility determination failed to articulate why Gaylor’s testimony was contradicted by his daily activities.  Finally, the Seventh Circuit found that the ALJ failed to consider the aggregate of Gaylor’s problems, and failed to explain the basis in the record for his RFC determination and, as a result, gave flawed hypotheticals to the VE that did not fully capture Gaylor’s limitations.   Mr. Gaylor was represented by Marcie E. Goldbloom.

posted 9/16/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on September 8, 2008: Appeals court clarifies factors for fee awards.Click on the link to read the article.

posted 9/9/2008


Mark DeBofsky’s article, “Mediating in the Appellate Court” was published in this summer’s ABA Litigation magazine, 34 Litigation 4 (Summer 2008).

Brady v. Astrue, No. 08-cv-374 (N.D. GA. Aug. 28, 2008). 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. Brady was represented by Marcie E. Goldbloom.

Craft v. Astrue, 539 F.3d 668 (7th Cir. Aug. 22, 2008). The Seventh Circuit remanded this case because the ALJ: failed to apply the special technique and properly evaluate Plaintiff’s mental limitations, which adversely affected the RFC finding and hypotheticals; erroneously found Plaintiff capable of simple, unskilled work, which is vague and fails to account for all of the evidence of record; merely recited the medical evidence of record, but failed to properly weigh it and trace a path from the evidence to his conclusions; failed to consider his lack of finances when holding a lack of treatment against him, contrary to SSR 96-7p; wrongly found Plaintiff’s subjective complaints were not documented in the medical record; ignored Plaintiff’s testimony as to how he performed his daily activities; failed to properly explore all potential inconsistencies between the VE’s testimony and the DOT.  Mr. Craft was represented by Frederick J. Daley, Jr. with assistance from Heather Aloe.

Washnieski v. Astrue, No. 07-cv-598 (E.D. Wisc. Aug. 22, 2008). The Court issued a remand in this case because the ALJ failed to conduct a function-by-function assessment of Plaintiff’s abilities, as required by SSR 96-8p, and failed to inquire as to any conflicts, as required by SSR 00-4p.  Mr. Washnieski was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

posted 9/7/2008


Wilson v. Astrue, No. 08-cv-10286 (E.D. Mich. Aug. 18, 2008). 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. Wilson was represented by Frederick J. Daley, Jr. with assistance from Marcie E. Goldbloom and Kate Hoppe.

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on August 18, 2008: Judge sees importance of discovery ruling .Click on the link to read the article.

posted 8/19/2008


Hart v. Astrue, No. 08-C-0007 (W.D. Wisc. Aug. 11, 2008). The Court issued a remand in this case because the ALJ made a conclusory credibility finding that fails to follow SSR 96-7p and properly consider all of the evidence, and took an overly simplistic view of the treating opinions, failing to properly consider their statements.  The Court complained that ALJ Schneider’s decisions continually fail to be well-reasoned.  Ms. Hart was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

posted 8/13/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on August 4, 2008: Ruling underscores value of treating doctor’s opinion .Click on the link to read the article.

posted 8/4/2008


Smith v. Astrue, No. 07-C-588 (N.D. Ind. July 29, 2008). The Court issued a remand in this case because the ALJ failed to properly specify the reasons for his credibility determination, failed to consider all of the relevant evidence and did not trace a path from the evidence to his conclusions resulting in an erroneous RFC and hypotheticals, thus, resulting in erroneous VE testimony. Mr. Smith was represented by Frederick J. Daley, Jr. with assistance from Kim Jones.

posted 7/31/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on July 21, 2008: Bankruptcy Omission Led to Estoppel .Click on the link to read the article.

Adams v. Astrue, No. 07-cv-2201 (C.D. IL July 17, 2008). 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. Adams was represented by Frederick J. Daley, Jr. with assistance from law clerk Suzanne Blaz.

posted 7/23/2008


Gardner v. Astrue, No. 07-C-5083 (N.D. Ill. July 15, 2008). The Court issued a remand in this case because the ALJ’s hypotheticals to the VE were flawed, indicating that the ALJ did not clarify with the VE why Plaintiff could perform light work with limitations to 4 hours of walking and standing and finding that the ALJ improperly distilled Plaintiff’s mental limitations into the ability to perform simple, routine tasks, which was not supported by any medical opinion of record. Mr. Gardner was represented by Frederick J. Daley, Jr. with assistance from Kate Hoppe and Suzanne Blaz.

Grieves v. Astrue, No. 07-C-4404 (N.D. Ill. July 11, 2008). The Court issued a remand in this case because the ALJ: failed to make a proper credibility determination pursuant to SSR 96-7p, failing to consider Plaintiff’s pain medication side-effects, wrongly construing her daily activities against her credibility, drawing unsupported inferences from the record and failing to fully and fairly develop the record; and he improperly discounted the treating physician’s opinion by playing doctor, making his own RFC assessment and only addressing that evidence which supported his ultimate RFC finding. Ms. Grieves was represented by Marcie E. Goldbloom with assistance from Kate Hoppe and Suzanne Blaz.

posted 7/16/2008


Mark DeBofsky spoke at the Million Dollar Roundtable Foundation’s Annual Meeting, which took place in Toronto, Canada from June 22nd through June 26th.

posted 6/27/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on June 23, 2008: Ruling means end for lenient regime of reviews.Click on the link to read the article.

Raflik v. Astrue, No. 07-C-854 (E.D.Wisc. June 17, 2008). The Court issued a remand in this case because the ALJ failed to inquire as to whether the VE’s testimony conflicted with the DOT pursuant to SSR 00-4p. Ms. Raflik was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.

posted 6/24/2008


The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin’s Workplace Issues section on June 9, 2008: Ruling shows problems with review system.Click on the link to read the article.

Evans v. Astrue, No. 07-C-290 (N.D. Ind. June 2, 2008). The Court issued a remand in this case because the ALJ failed to build a bridge from the evidence to his RFC conclusions and failed to discuss the specific duties involved in Plaintiff’s prior job or assess her ability to perform those specific tasks.  Ms. Evans was represented by Frederick J. Daley, Jr. with assistance from Kate Hoppe and Suzanne Blaz.

posted 6/9/2008


On Friday, June 6, 2008, Mark DeBofsky spoke about Subrogation and Reimbursement at the 22nd Annual National Institute on ERISA Basics, which was held in Chicago, Illinois from June 4th through June 6th.

posted 6/6/2008


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