Daley, DeBofsky and Bryant - Attorneys concentrating in disability law and employment rights

 

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Archives: 7/29/05 to 12/29/05

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on December 27, 2005: Court Judgment Stays on the Books. Click on the link to read the article. 

 

posted 12/29/2005

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on December 5, 2005: Another Court Questions Impartiality of Doctor. Click on the link to read the article. 

 

Mark DeBofsky spoke on ERISA Preemption at the December 2, 2005 meeting of the Kansas Trial Lawyers Association in Kansas City, Missouri.

 

posted 12/5/2005

 

Szanyi v. Barnhart, No. 2:04-C-412 (N.D. IN November 23, 2005).  The Court found that the ALJ failed to articulate his reasons for discrediting some of Mr. Szanyi's claims; thus, his credibility and Step Five findings were flawed.  Additionally, the court suggested that the ALJ inquire as to the effect of GAF on the ability to work on remand.  Mr. Szanyi 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 November 21, 2005: Claimant denied fair chance to continue benefits. Click on the link to read the article. 

 

posted 11/28/2005

 

Item of Interest: Milliman, Inc.'s Impact of Disability Insurance Policy Mandates Proposed by the California Department of Insurance 

 

Mark DeBofsky spoke at the ABA's 15th Annual National Institute on ERISA Litigation conference held on November 10-11, 2005 in the Sofitel located near the Water Tower in Chicago, Illinois.

 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on November 7, 2005: Court applies common sense to ERISA. Click on the link to read the article. 

 

posted 11/11/2005

Poznanski v. Barnhart, No. 1:05-C-1199 (N.D. IL October 5, 2005).  The Court found that the ALJ's reasons for discounting the opinion of the treating doctor in favor of the State agency doctor were not supported by substantial evidence; thus, his RFC finding was flawed.  Mr. Poznanski 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 October 18, 2005: Death apparently not enough to prove disability. Click on the link to read the article. 

 

posted 10/19/2005

 

The California Department of Insurance issued an order on October 3, 2005 revoking Unum’s right to do business in CA; however, the order will not take effect based on a settlement reached.  The settlement agreement includes: claimants’ rights to demand an IME, self-reported illness limitations are to be removed from policies, no more discretionary clauses, and the right to seek independent review if a claimant goes through reassessment and isn’t satisfied.  The policy definition of “disability” also has to be rewritten to comport with CA law – no more “job versus occupation.” Click here for CDI's Market conduct report on UNUM and here for their accusation. 

 

Harris v. Barnhart, No. 2:04-C-341 (N.D. IN September 30, 2005).  The Court issued a remand in the case instructing the ALJ to properly develop the record regarding Harris's past work in accordance with SSR 82-62, build a logical bridge from the evidence to his decision, consider the reports from Harris's employer, and to include all of the limitations into his hypotheticals to the VE.  Mr. Harris was represented by Frederick J. Daley, Jr. with assistance from Dorie Budlow. 

 

Cruz v. Barnhart, No. 03-C-1489 (E.D. WI September 29, 2005).  The Court remanded this case for further clarification of Cruz's past work and a new determination at Step 4 and 5 in accordance with SSR 00-4p.  Ms. Cruz was represented by Frederick J. Daley, Jr. 

 

Christy v. Barnhart, No. 03-C-1308 (E.D. WI September 29, 2005).  The Court remanded this case so that the ALJ will consider the effect Christy's obesity had on her impairments and in order that he may make a proper credibility determination in accordance with SSR 96-7p.  Ms. Christy was represented by Frederick J. Daley, Jr. with assistance from Violet Borowski. 

 

Bungert v. Barnhart, No. 05-C-2181 (N.D. IL September 27, 2005).  The government declined to brief the case, but instead agreed to a remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Ms. Bungert was represented by Marcie E. Goldbloom with assistance from law clerk Suzanne Blaz. 

 

posted 10/7/2005

 

Diaz v. Prudential, No. 04-2342 (7th Cir. September 20, 2005). The Seventh Circuit remanded this case to the District Court for de novo review.  The Court held that plans without discretion require a de novo review while plans with discretion require a discretionary review.  The Court reasoned that the critical question was whether the plan gave the employee adequate notice that the plan administrator would make a judgment within the confines of pre-set standards, or if it has the latitude to shape the application, interpretation, and content of the rules in each case.  Mr. Diaz was represented by Mark DeBofsky.

 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on September 19, 2005: Judgment an incentive for careful claims review. Click on the link to read the article.

 

Alexander v. Barnhart, No. 04-C-6840 (N.D. IL September 21, 2005).  The Court held that the ALJ: failed to make a proper RFC finding; failed to address Ms. Alexander's obesity and its effect on her ability to perform work; failed to recontact her doctors in order to adequately develop the record; and erred in discounting Ms. Alexander's credibility based upon her daily activities.  Additionally, the Court found the ALJ's step four analysis to be based on inaccurate hypotheticals, that the ALJ failed to take into consideration the fact that Plaintiff's past work was part-time, and failed to follow SSR 00-4pbecause he did not question the VE as to whether the jobs conflicted with the DOT.  Ms. Alexander was represented by Frederick J. Daley, Jr. with assistance from law clerk Suzanne Blaz. 

 

Sosebee v. Barnhart, No. 05-C-0001 (N.D. IL September 16, 2005).  The Court remanded this case because the ALJ improperly altered the RFC upon remand, made improper inferences from Mr. Sosebee's alcohol usage, and failed to follow SSR 00-4p because he did not ask if the VE's jobs were consistent with the DOT.  Mr. Sosebee was represented by Frederick J. Daley, Jr. with assistance from Barbara Borowski. 

 

Rocha v. Barnhart, No. 05-C-0199 (N.D. IL September 5, 2005).  The government declined to brief the case, but instead agreed to a remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Ms. Rocha was represented by Frederick J. Daley, Jr.  with assistance from Barbara Borowski. 

 

posted 9/28/2005

 

Lowery v. Barnhart, No. 2:04-C-383 (N.D. IN September 8, 2005).  The government declined to brief the case, but instead agreed to a remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Ms. Lowery was represented by Frederick J. Daley, Jr. 

 

Borkowski v. Barnhart, No. 05-C-3632 (N.D. IL August 30, 2005).  The government declined to brief the case, but instead agreed to a remand.  Mr. Borkowski was represented by David A. Bryant and Marcie E. Goldbloom. 

 

On September 9, 2005, Mark DeBofsky spoke at the Midwest Pain Society conference. Click here for his Legal Aspects of Disability paper.

 

Forrest v. Barnhart, No. 04-C-4666 (N.D. IL August 29, 2005).  The court remanded this case because the ALJ's reasons for not adopting Dr Innocencio's opinion were not supported by substantial evidence, his statement that there were inconsistencies in Dr. Santos's opinion were incorrect and, regardless, he should have recontacted Dr. Santos to clear up any perceived inconsistencies, and because substantial evidence did not support the ALJ's credibility finding.  Mr. Forrest was represented by Marcie E. Goldbloom with assistance from Barbara Borowski. 

 

posted 9/9/2005

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on August 29, 2005: Law trying to get head around 'mental illness'. Click on the link to read the article. 

 

Brookins v. Barnhart, No. 04-C-7805 (N.D. IL August 17, 2005).  The government declined to brief the case, but instead agreed to a remand.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Ms. Brookins was represented by Marcie E. Goldbloom with assistance from law clerk Sarah Breisblatt.

 

Morris v. Barnhart, No.1:04-C-517 (D. Hawaii  August 1, 2005).  The court issued an Order remanding this case pursuant to sentence four.  Ms. Morris was represented by Frederick J. Daley and Carl Varady.

 

Ruttenberg v. U.S. Life, No. 04-1653 (7th Cir. June 30, 2005). This decision remanding Mr. Ruttenberg's case to the District court was written by Circuit Judge Ripple.  The Court held that the terms "full-time" and "employee" cannot be said to be unambiguous, and that the District court erred in dismissing Mr. Ruttenberg's claim on that ground.  The Court then overturned Mr. Ruttenberg's benefit denial and established the doctrine of contra proferentum and “reasonable expectations of the insured” in benefit claims.  Mr. Ruttenberg was represented by Mark DeBofsky.

 

On August 6, 2005, Mark DeBofsky was inducted as a Fellow of the American College of Employee Benefits Counsel at the American Bar Association. 

 

Seamon v. Barnhart, No. 4:05-cv-117 (W.D. WI August 23, 2005).  The court adopted the Magistrate Judge's Report and Recommendation (click on link to read) remanding this case pursuant to sentence four.  Ms. Seamon was represented by Marcie E. Goldbloom with assistance from Violet Borowski.

 

posted 8/30/2005

 

 

Johnson v. Barnhart, No. 4:05-cv-117 (E.D. MO August 4, 2005).  The government declined to brief the case, but instead agreed to a reversal and award of benefits.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Mr. Johnson was represented by Marcie E. Goldbloom with assistance from law clerk Sarah Breisblatt.

 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on August 1, 2005: Standard of review in ERISA cases 'too deferential'. Click on the link to read the article. 

 

Morris v. Barnhart, No. 04-00517 (Hawaii August 1, 2005).  The court remanded this case because the ALJ: failed to articulate his reasons for discrediting Claimant’s testimony, i.e. it wasn’t specific enough for the Court to be able to trace a path from the evidence to the ALJ’s conclusions; failed to properly weigh the medical evidence and show how he made his MRFC conclusions, which resulted in the Court not being able to tell if the ALJ’s hypotheticals are correct; failed to articulate his findings to the extent that the Court was unable to determine whether the ALJ’s decision on severity is supported by substantial evidence; and failed to provide an adequate explanation of how he reached the Claimant’s physical RFC.  Ms. Morris was represented by Frederick J. Daley with assistance from attorney Heather Aloe. 

 

posted 8/5/2005

 

Rogers v. Barnhart, No. 04-C-7842 (N.D. IL July 7, 2005).  The government declined to brief the case, but instead agreed to a voluntary remand and award of benefits upon remand based on the Grids.  This occurred after the case had been briefed for district court by Daley, DeBofsky and Bryant.  Ms. Rogers was represented by Frederick J. Daley, Jr. with assistance from attorney Marcie E. Goldbloom  

 

Little v. Barnhart, No. 04-cv-3724 (N.D. IL June 6, 2005).   The court found that the ALJ erred in applying the Medical-Vocational Rules due to Mr. Little's significant non-exertional limitations of  fatigue and pain.  Mr. Little was represented by Frederick J. Daley with assistance from attorney Dorie Budlow. 

 

The following article by Mark DeBofsky appeared in the Chicago Daily Law Bulletin's Workplace Issues section on July 18, 2005: Social Security case buttresses benefits claim. Click on the link to read the article. 

 

On July 26, 2005, Mark DeBofsky spoke at the ATLA 2005 Convention in Toronto on ERISA Pre-emption.

 

posted 7/29/2005

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