Archives

Archives: 8/1/2006 - 3/29/2007

Santino v. Barnhart, No. 2:06-C-75 (N.D. IN March 29, 2007).  The Court  issued a remand in this case because the ALJ played doctor when determining RFC, failed to re-contact the treating physician, and failed to incorporate the effects of Mr. Santino's mental impairments into the hypotheticals.  Mr. Santino was represented by Frederick J. Daley, Jr. with assistance from Marcie Goldbloom.  

Wilson v. Barnhart, No. 2:04-C-510 (N.D. IN March 28, 2007).  The Court  issued a remand in this case because the ALJ failed to follow SSR 96-7p and cite specific reasons for his credibility finding. A mere finding of "not generally credible" proximately located near a discussion of medical evidence does not satisfy SSR 96-7p.  Furthermore, the Court held that it couldn't determine whether a correct Listings finding was made because of the incomplete credibility finding.  Ms. Wilson was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz.   

posted 3/29/2007

Thomas v. Barnhart, No. 06-C-3291 (N.D. IL March 22, 2007).  The Court  issued a remand in this case because the ALJ failed to make a specific articulated basis for his credibility finding, and failed to follow SSR 00-4p and investigate any inconsistencies between the DOT and the VE's testimony.  Mr. Thomas was represented by Frederick J. Daley, Jr. with assistance from Heather Aloe and Marcie Goldbloom.   

posted 3/22/2007

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on March 19, 2007: Ruling on scope, standard of review disturbing. Click on the link to read the article. 

posted 3/20/2007

On March 15, 2007, Frederick J. Daley, Jr. spoke with Barry Schultz at the Chicago Bar Association Social Security law practice section about "Protecting the Record for Appeal/Legal Issues."

posted 3/15/2007

David A. Bryant will be a panelist on the Illinois State Bar Association cable television taping of “Planning for the Future; Are your Benefits Secure?” Part 1 and Part 2 (airing Tuesdays March 2007).

On March 9, 2007, David A. Bryant spoke at the Winnebago County Bar Association Workers' Compensation section about "Social Security/Medicare Set-Asides& CMS."

posted 3/12/2007

Salyer v. Barnhart, No. 3:06-cv-359 (N.D. IN March 7, 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. Salyer was represented by Frederick J. Daley, Jr. with assistance from law clerk Kim Jones.    

Mroz v. Barnhart, No. 2:05-cv-434 (N.D. IN March 5, 2007).  The Court  issued a remand in this case because the ALJ: failed to re-contact a treating doctor for clarification; made an incomplete RFC with no mention of mental impairments; and failed to specify the sit/stand option as required by SSR 96-9p, all of which resulted in erroneous hypotheticals to the VE.  Mr. Mroz was represented by Frederick J. Daley, Jr. with assistance from Suzanne Blaz and Barbara Long.  

Ackman v. Barnhart, No. 1:06-cv-1110 (N.D. IL February 23, 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. Ackman was represented by Frederick J. Daley, Jr. with assistance from Heather Aloe.   

Yourchuck v. Barnhart, No. 06-cv-420 (W.D. WI February 15, 2007).  The Court  issued a remand in this case because the ALJ failed to consider Ms. Yourchuck's medications and their side-effects when determining credibility.  Ms. Yourchuck was represented by Frederick J. Daley, Jr. with assistance from law clerk Daniel James.   

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on March 5, 2007: Right result, but confusing reasoning. Click on the link to read the article.   

posted 3/6/2007

Mark DeBofsky spoke on February 22, 2007 on "The Convoluted World of ERISA" at the ICLE 10th Anniversary Employment Law Short Course in Chicago, Illinois. 

posted 3/2/2007

Baez v. Barnhart, No. 3:06-cv-345 (N.D. IN February 14, 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. Baez was represented by Frederick J. Daley, Jr. with assistance from law clerks Suzanne Blaz and Kate Hoppe. 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on February 12, 2007: Insurer can't 'cherry pick' medical report.  

posted 2/14/2007

Egan v. Barnhart, No.  05-C-6752 (N.D. IL February 1, 2007).  The Court  issued a remand in this case because: the ALJ failed to follow SSR 96-8p and engage in a function-by-function analysis as well as consider Mr. Egan's ability to perform activities for eight hours per day, five days  per week when formulating his RFC finding; the ALJ failed to properly evaluate Mr. Egan's past work; and because the ALJ impermissibly made his own independent medical determinations in regards to Egan's level of pain.  Mr. Egan was represented by Frederick J. Daley with assistance from law clerks Benjeman Nichols and Suzanne Blaz.  

posted 2/5/2007

Giles v. Barnhart, No. 1:06-cv-3546 (N.D. IL January 31, 2007).  The government declined to brief the case, but instead agreed to a voluntary remand.  Ms. Giles was represented by Frederick J. Daley, Jr.  

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on January 29, 2007: Insurer can't keep manual from claimant. Click on the link to read the article.  

posted 1/31/2007

Lembke v. Barnhart, No. 06-C-306 (W.D. WI January 24, 2007).  The Court  issued a remand in this case adopting the Magistrate Judge's Report & Recommendation that the case should be remanded because the ALJ's RFC did not include all of the mental limitations and findings of the state Agency physicians, and because the ALJ improperly ignored many of Plaintiff's treating doctor's findings. Ms. Lembke was represented by Frederick J. Daley with assistance from law clerk Kim Jones.    

Adams v. Barnhart, No.  3:05-C-817 (S.D. IL January 24, 2007).  The Court  issued a remand in this case adopting the Magistrate Judge's Report & Recommendation because the ALJ failed to properly consider and evaluate all of Mr. Adams' functional limitations and their effect on his ability to work in a competitive environment. Mr. Adams was represented by Frederick J. Daley with assistance from law clerk Suzanne Blaz.  

DeMyer v. Barnhart, No.  5:06-C-0071 (W.D. KY January 23, 2007).  The Court  issued a remand in this case adopting the Magistrate Judge's Report & Recommendation because: the ALJ's finding of no vocational limitations due to migraine headaches was not supported by substantial evidence; and because the ALJ did not properly weigh the medical opinions in the record and failed to give good reasons for rejecting Dr. Walton's findings. The case was remanded for proper Mr. DeMyer was represented by Frederick J. Daley with assistance from attorney Heather Aloe.  posted 1/29/2007

Christie v. Barnhart, No.  04-C-3787 (N.D. IL January 16, 2007).  The Court  issued a remand in this case because the ALJ: failed to sufficiently explain her basis for rejecting some evidence of record; ignored substantial evidence as to Mr. Christie's physical and mental limitations when assessing RFC; failed to consider the combination of Mr. Christie's impairments; and made an erroneous and truncated credibility finding.  Mr. Christie was represented by Marcie E. Goldbloom with assistance from law clerk Suzanne Blaz.   

posted 1/29/2007

On January 13, 2007, Mark DeBofsky spoke at the ABA TIPS Midwinter Meeting in Laguna Beach, California.  More information is available here.

On January 19, 2007, Mark DeBofsky spoke with Mark Casciari at the Chicago Bar Association's Employee Benefits Committee.

posted 1/22/2007

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on January 15, 2007: Work ability more than just physical. Click on the link to read the article. 

Sucharski v. Barnhart, No.  2:05-C-1185 (E.D. WI January 10, 2007).  The Court  issued a remand in this case because the ALJ did not properly weigh the medical opinions in the record, failed to build a bridge from the evidence to her conclusions,  and did not follow SSR 96-7p or make a complete RFC finding or hypotheticals because she failed to incorporate or address the effects of Ms. Sucharski's MS and its resulting fatigue.  Ms. Sucharski was represented by Frederick J. Daley with assistance from attorney Heather Aloe.   

posted 1/15/2007

The following article by Mark DeBofsky appeared in ATLA's Insurance Law Section Journal, Vol. 13, No.1, Fall 2006: The Past, Present, and Future of Discretionary Clauses in ERISA Plans. Click on the link to read the article. 

posted 1/8/2007

Green v. Barnhart, No.  2:06-C-2016 (C.D. IL January 3, 2007).  The Court  issued a remand in this case adopting the Magistrate Judge's Report & Recommendation because the ALJ failed to: obtain a valid waiver of counsel from Ms. Green; adequately develop the record; follow SSR 02-1p and take Ms. Green's obesity into consideration; follow SSR 96-8p and make a proper RFC assessment; explain how he reconciled medical reports of record; follow SSR 96-7p by making a more detailed credibility finding that is not inconsistent with SSR 96-7p, ask Ms. Green why she did not follow her doctors' advice to lose weight, and consider any reasons for her non-compliance; and properly incorporate all of the limitations into the hypotheticals.  Ms. Green was represented by Marcie Goldbloom and David Bryant.   

Leonard v. Barnhart, No.  06-C-207 (W.D. WI December 29, 2006).  The Court  issued a remand in this case adopting the Magistrate Judge's Report & Recommendation because the ALJ's credibility finding was illogical, failed to follow SSR 96-7p, and was unsupported by the record in this fibromyalgia case.  Additionally, the court noted that the ALJ: failed to follow SSR 83-20; did not properly evaluate the medical evidence (failing to properly consider and weigh both the physical and mental evidence of record); failed to consider the combination of her impairments; and failed to find Ms. Leonard's fibromyalgia severe at step two, which demonstrated a fundamental misunderstanding of the nature of Ms. Leonard's impairments and called into question the ALJ's own credibility.  Ms. Leonard was represented by Frederick J. Daley with assistance from law clerk Suzanne Blaz. 

posted 1/4/2007

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on December 18, 2006: Opinion aberrational on work definition. Click on the link to read the article. 

Torgeson v. UNUM, No. 05-3052 (N.D. Iowa December 12, 2006). Judge  Mark W. Bennett determined that UNUM's denial of Ms. Torgeson's claim for LTD benefits was an abuse of discretion, and reversed and remanded for a calculation and award of benefits. Specifically, the Court noted that UNUM abused its discretion when it: demanded objective medical evidence to support Ms. Torgeson's fibromyalgia and chronic fatigue conditions and limitations; read the long-term aspirations of Ms. Torgeson's physicians as evidence that the current restrictions they had given her were not justified; rejected her treating physicians' opinions for that of reviewing physicians' opinions; failed to consider the effect of the combination or "co-morbidity" of her impairments, which were established by medical evidence; and failed to find her disabled under the Plan.  Ms. Torgeson was represented by Mark DeBofsky.

posted 12/18/2006

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on November 27, 2006: Standard of review didn't prevent reversal. Click on the link to read the article. 

posted 11/28/2006

Mark DeBofsky's article, Discretionary Clauses and Insurance recently appeared in Fall 2006 issue of the Journal of Insurance Regulation.

Johnson v. Barnhart, No. 05-C-129 (W.D. Wisc. November 15, 2006).  U.S. District Court Judge Barbara Crabb agreed to issue a remand order sending the case back to the ALJ for a new hearing, an update of the record, Vocational Expert testimony, and a Medical Expert if necessary.    This occurred after the case had been filed in the Seventh Circuit and briefed by Daley, DeBofsky and Bryant.  Ms. Johnson was represented by Frederick J. Daley, Jr. with assistance from Barbara Borowski. 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on November 13, 2006: Oversights led to offsets for veteran's benefits. Click on the link to read the article.  posted 11/16/2006

posted 11/16/2006

Green v. Barnhart, No. 2:06-cv-36 (N.D. Ind. November 9, 2006).  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. Green was represented by Frederick J. Daley, Jr. with assistance from law clerk Kate Hoppe. 

Kaszuba v. Barnhart, No. 2:06-cv-113 (N.D. Ind. November 8, 2006).  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. Kaszuba was represented by Frederick J. Daley, Jr. with assistance from law clerk Kate Hoppe.  

Smith v. Barnhart, No. 04-cv-2823 (N.D. Ill. October 26, 2006).  The Court issued a remand in this case because the ALJ erred in relying on the June 2002 FCE in that he did not address the documented difficulties Mr. Smith had in performing the activities in the report.  The Court then concluded that there was not substantial evidence to support the ALJ's finding that Plaintiff could perform sedentary or light work.  Mr. Smith was represented by Frederick J. Daley, Jr. with assistance from attorney Heather Aloe. 

McKeller v. Barnhart, No. 1:04-cv-692 (S.D. Ohio October 20, 2006).  The Court issued an outright reversal in this case because a proper analysis of the record as a whole showed Plaintiff to be disabled. In granting Plaintiff benefits, the Court also noted that the following errors: the ALJ's MRFC and physical RFC findings were not supported by substantial evidence, the ALJ failed to properly weigh the evidence of record; the ALJ failed to take into consideration Plaintiff's condition as a whole and ignored evidence favorable to him; and the ALJ failed to follow SSR 00-4p.  Mr. McKeller was represented by Marcie E. Goldbloom with assistance from law clerk Suzanne Blaz.  

On November 9th and 10th of 2006, Mark DeBofsky spoke at the ABA ERISA Litigation conference, which was held in Chicago, Illinois.

posted 11/10/2006

On October 28, 2006, David Bryant spoke at ITLA's Workers' Compensation Seminar in Oak Brook, Illinois about Medicare Set Asides. 

On October 26,2006, Mark DeBofsky spoke with Dr. Henry Conroe for the American Association of Psychiatry and the Law in Chicago, Illinois. 

posted 10/31/2006

Mark DeBofsky's article, What Every Physician Needs to Know About Disability Insurance recently appeared in September/October issue of the Journal of Medical Practice Management.

posted 10/24/2006

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on October 16, 2006: Court misunderstands definitions. Click on the link to read the article. 

posted 10/17/2006

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on October 2, 2006: Court issues important case on attorney fees. Click on the link to read the article.

Johnson v. Barnhart, No. 2:05-cv-124 (N.D. Ind. September 28, 2006).  The Court issued a remand in this case because: the ALJ made numerous erroneous credibility findings which did not come from the medical evidence, but his own lay findings, and failed to follow SSR 96-7p; the ALJ failed to properly consider Ms. Johnson's symptoms; the ALJ failed to provide a reasoned decision and relied on his own medical opinion rather than call upon a medical expert; and the ALJ's RFC finding and hypotheticals to the VE were erroneous.  Ms. Johnson was represented by Frederick J. Daley, Jr. with assistance from contract attorney Barbara Long.

McKinnie v. Barnhart, No. 2:05-cv-425 (N.D. Ind. September 26, 2006).  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. McKinnie was represented by Frederick J. Daley, Jr. with assistance from attorney Heather Aloe. 

posted 10/3/2006

Roseboom v. Barnhart, No. 4:05-cv-4053 (C.D. Ill. September 22, 2006).  The Court issued a remand in this case because the ALJ improperly found Ms. Roseboom capable of performing her past work as a realtor, which was not SGA.  Ms. Roseboom was represented by Frederick J. Daley, Jr. with help from law clerk Suzanne Blaz. 

Presta v. Barnhart, No. 05-cv-0179 (N.D. Ill. September 22, 2006).  The Court issued a remand in this case because the ALJ improperly relied on the Grids and failed to ask the VE what jobs existed for Mr. Presta to perform in the current national economy.  Mr. Presta was represented by Frederick J. Daley, Jr. with help from law clerk Suzanne Blaz.

Mark DeBofsky spoke at the Smith Group Reinsurance Conference held in Kennebunkport, Maine on September 19th through 21st.  For more information, click here.   

posted 9/27/2006

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on September 20, 2006: Judge has neither love nor mercy for ERISA. Click on the link to read the article.  

posted 9/20/2006

Paiser v. Barnhart, No.  05-C-602 (E.D. Wisc. September 8, 2006).  The Court  issued a remand in this case because: the ALJ's finding that Mr. Paiser did not have a severe impairment at Step Two was not supported by substantial evidence; the ALJ failed to fully evaluate the medical evidence of record; the ALJ's credibility finding was insufficient; and the ALJ's Step Four finding cannot be sustained due to the errors the ALJ committed at other levels.  Mr. Paiser was represented by Frederick J. Daley with assistance from contract attorney Barbara Long. 

posted 9/11/2006

Feibusch v. Integrated Device Tech., Inc. Employee Benefit Plan,  No. 04-16501 (9th Cir. Sept. 7, 2006). The Ninth Circuit reversed the District Court's decision that an insurer, as issuer and administrator, did not abuse its discretion in terminating plaintiff's disability benefits because the District Court: 1) did not apply the de novo standard of review, which was required since policy language did not merit deferential judicial review; and 2) did not correctly interpret the plan's provisions for termination of total disability. Ms. Feibusch was represented by Mark DeBofsky.  

Melzer v. Barnhart, No. 1:06-cv-396 (E.D. Wisc. Sept. 7, 2006).  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. Melzer was represented by Frederick J. Daley, Jr.  

posted 9/7/2006

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on August 28, 2006: Where Social Security, insurance meet. Click on the link to read the article.

McGhee v. Barnhart, No.  05-50180 (N.D. IL August 28, 2006).  The Court  issued a remand in this case following the Magistrate Judge's Report & Recommendation because the ALJ: failed to consider Listing 14.02 at Step Three;  failed to properly address the treating physician opinions; failed to properly evaluate McGhee's credibility and pain; and did not have substantial evidence due to earlier errors for her Step Four decision.  The Court recommended that the ALJ, upon remand, proceed to Step Five.  Ms. McGhee was represented by Frederick J. Daley with assistance from contract attorney Tamara Kushnir.

Mullens v. Barnhart, No.  06-C-395 (E.D. Wisc. August 23, 2006).  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. Mullens was represented by Frederick J. Daley, Jr. with help from law clerk Sara Bastani. 

Witt v. Barnhart, No.  05-C-0003 (N.D. IL August 22, 2006).  The Court  issued a remand in this case because: the ALJ failed to follow the special technique for evaluating mental impairments and incorporate them pursuant to SSR 96-8p into the RFC finding; the ALJ's credibility findings affected his ultimate physical RFC finding, and the court found that the credibility finding was erroneous making, as a result, the physical RFC finding erroneous; and the hypotheticals were not based on accurate or comprehensive mental or physical RFCs, thus, making the testimony not reliable.  Significantly, this Court held, although it did not find Mr. Witt to have the necessary limitations in adaptive functioning, that Listing 12.05(c) should be evaluated for individuals with low IQs as the Listing does not require a formal diagnosis of mental retardation.  Mr. Witt was represented by Frederick J. Daley with assistance from law clerk Suzanne Blaz.

posted 8/29/2006

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on August 14, 2006: Court misses the mark on disability. Click on the link to read the article. 

Witz v. Barnhart, No.  05-50145 (N.D. IL August 7, 2006).  The Court  issued a remand in this case adopting the Magistrate Judge's Report & Recommendation because the ALJ:  failed to follow the special technique set out in 20 C.F.R. § 404.1520a to evaluate mental impairments resulting in an incomplete evaluation of Witz's mental impairments at Step Three and beyond; failed to properly consider all evidence when making his RFC determination; ignored the longitudinal evidence of record without articulating if or why she discounted the evidence; failed to address the inconsistent parts of the ME's testimony and the fact that the ME did not disagree with the treating doctor, who found Witz to have severely disabling mental impairments; failed to articulate whether she included any symptoms or limitations based upon Witz's depression into the RFC; did not appropriately evaluate Witz's inability to control his impairments with medications;  inadequately reviewed Witz's seizure disorder; failed to take into consideration Witz's neck and back pain; failed to specify her reasons for a negative credibility finding; and did not pose complete hypotheticals to the VE resulting in an erroneous Step Four finding.  Mr. Witz was represented by Frederick J. Daley with assistance from law clerk Suzanne Blaz

posted 8/15/2006

Garman v. Barnhart, No. 2:05-C-304 (N.D. IN August 4, 2006).  The government declined to brief the case, but instead agreed to a voluntary sentence four remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Mr. Garman was represented by Frederick J. Daley, Jr. with assistance from  law clerk Suzanne Blaz.

posted 8/4/2006

Bosnich v. Barnhart, No.  1:05-5071 (N.D. IL July 31, 2006).  The Court  issued a remand in this overpayment case because the Commissioner's finding that Plaintiff was not without fault in creating the overpayment was not supported by substantial evidence in light of Ms. Bosnich's mental impairments.  Ms. Bosnich was represented by Marcie E. Goldbloom with assistance from law clerk Suzanne Blaz.  

posted 8/1/2006

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