Cooperman v. Ssa ( 2023 )

Case: 22-1915 Document: 75 Page: 1 Filed: 05/16/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEONARD COOPERMAN,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2022-1915
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-7521-16-0001-T-1.
______________________
Decided: May 16, 2023
______________________
LENNY COOPERMAN, Feeding Hills, MA, pro se.
JASON HAMILTON, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCARTHY.
SOMMATTIE RAMRUP, Association of Administrative
Law Judges/IFPTE, Purchase, NY, for amicus curiae Asso-
ciation of Administrative Law Judges/IFPTE.
______________________
Case: 22-1915 Document: 75 Page: 2 Filed: 05/16/2023
2 COOPERMAN v. SSA
Before LOURIE, HUGHES, and STARK, Circuit Judges.
PER CURIAM.
Leonard Cooperman appeals a decision of the Merit
Systems Protection Board finding good cause to remove Mr.
Cooperman from his position as an administrative law
judge at the Social Security Administration. Because the
Board’s decision is supported by substantial evidence and
because the Board did not otherwise err in its analysis, we
affirm.
I
A
Administrative law judges with the Social Security
Administration (SSA) review claims for disability benefits.
One type of disability benefit is for a closed period of
disability (CPOD). To be eligible for CPOD benefits, a
claimant must show that they were temporarily disabled,
but later experienced a medical improvement that allowed
them to work again. A claimant who receives CPOD
benefits will receive a lump-sum disability payment
without having to go through the full hearing process, but
those claimants might forgo ongoing disability benefits for
which they might have qualified. Agency regulations
require that a finding of medical improvement be based
upon more than a claimant’s own assertion that their
condition has improved. Instead, a finding of medical
improvement “must be based on the changes in the
symptoms, signs, and/or laboratory findings associated
with [the] impairment(s).” 20 C.F.R. § 404.1594(b)(1).
Along with the relevant statutes and regulations,
administrative law judges also reference two agency
manuals for guidance when issuing disability decisions.
Administrative law judges must follow the policies laid out
in the agency’s Hearings Appeals and Litigation Law
Manual (HALLEX), which is binding on all administrative
law judges employed by the SSA. In relevant part, the
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COOPERMAN v. SSA 3
HALLEX requires administrative law judges to make a
complete record of all hearing proceedings, which includes
summarizing the content and conclusion of any off-the-
record proceedings on the record. The HALLEX also
requires administrative law judges to provide “an
explanation of the finding(s) on each issue that leads to the
ultimate conclusion, including citing and discussing
supporting evidence.” SAppx 13 (quoting HALLEX I-2-8-
25).
Administrative law judges may also reference the
Program Operations Manual System (POMS) for more
guidance. But the POMS is not a primary source of policy,
nor are its provisions binding on administrative law
judges. In relevant part, the POMS states that an
“improvement in symptoms alone, without associated
changes in signs or laboratory findings, may, however,
support finding [medical improvement].” POMS DI
28010.015(C)(2).
B
Mr. Cooperman was an administrative law judge
appointed by the SSA in June 2005 and assigned to work
in the Office of Disability Adjudication Review (ODAR) in
Springfield, MA. During his employment, Mr. Cooperman
issued CPOD decisions. Beginning in 2010, claimants
began filing complaints that Mr. Cooperman was
pressuring them to accept a CPOD determination in lieu of
conducting a full disability hearing. Some of these
claimants immediately re-applied for disability benefits
after receiving a CPOD decision, increasing the workload
for ODAR. After approximately 35 of Mr. Cooperman’s
decisions were found “questionable” for failing to state the
evidentiary basis for the CPOD determination, Mr.
Cooperman was offered re-training.
In January 2011, a U.S. Magistrate Judge in the Dis-
trict of Massachusetts remanded one of Mr. Cooperman’s
cases, noting that “contrary to the directives of the
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4 COOPERMAN v. SSA
regulations and the HALLEX manual, the record does not
reflect what was discussed off the record prior to the hear-
ing regarding a ‘proposal’ Plaintiff apparently felt pres-
sured to ‘accept’ in lieu of a ‘full hearing.’” SAppx 19
(quoting Betancourt v. Astrue, 824 F. Supp. 2d 211, 216–17
(D. Mass. 2011)). After the remand, Mr. Cooperman was
once again offered re-training, including specific instruc-
tions for explaining the basis for a CPOD determination, as
well as instructions for memorializing off-the-record dis-
cussions. But throughout 2011, Mr. Cooperman’s CPOD
decisions continued to draw complaints from claimants and
increased scrutiny from the agency, resulting in
Mr. Cooperman receiving a directive in December 2011 to
comply with the requirements for issuing CPOD determi-
nations and for memorializing off-the-record discussions.
Even after receiving this directive, claimants continued to
complain about Mr. Cooperman’s decisions, causing the
agency to conduct interviews with Mr. Cooperman in Octo-
ber 2012 and in March 2013. After both interviews, the
agency concluded that Mr. Cooperman was continuing to
have off-the-record conversations with claimants and their
counsel without appropriately memorializing those conver-
sations and was still failing to adequately support his
CPOD determinations.
In September 2013, the agency conducted a focused
review of Mr. Cooperman’s decisions and found a pattern
of deficiencies. This included “[CPOD] decisions that were
not supported by the evidence of record; off-the-record
discussions . . . that were not adequately summarized on
the record; and unsecured email communications between
[Mr. Cooperman] and claimants or claimants’
representatives that contained [personally identifiable
information] belonging to the claimants.” SAppx 26. This
led the agency to make a referral to the Office of the
Inspector General (OIG) for an investigation into the
“possibility of fraud, waste and abuse, or mismanagement
by ALJ Cooperman or the representatives appearing before
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COOPERMAN v. SSA 5
him.” SAppx 26. The OIG’s report found no evidence of
criminal wrongdoing but found that Mr. Cooperman’s
decisions “lacked sufficient reference to medical evidence
to support” those decisions, and that Mr. Cooperman had
sent “emails containing [personally identifiable
information] that were not encrypted or password
protected . . . .” SAppx 27. At this point, the agency began
to seriously consider removing Mr. Cooperman from his
position.
C
In October 2015, the agency filed a complaint with the
Merit Systems Protection Board to remove Mr. Cooperman
from his position for good cause based on two charges:
neglect of duties and conduct unbecoming. The neglect of
duty charge included specifications directed at Mr.
Cooperman’s failure to provide the evidentiary rationale
behind his CPOD determinations, his failure to
memorialize off-the-record conversations, and his
mishandling of claimants’ personally identifiable
information. The conduct unbecoming charge included 16
specifications directed at Mr. Cooperman’s email
communications with various legal representatives that
potentially gave rise to a perception of partiality. The
initial decision sustained both charges but found that a
180-day suspension was the appropriate penalty, rather
than removal. After both the agency and Mr. Cooperman
appealed the initial decision to the full Board, the Board
upheld the initial finding sustaining both charges and
found good cause to remove Mr. Cooperman from his
position. The Board found that the initial decision did not
properly evaluate the Douglas factors 1 regarding the
1 The Douglas factors are the twelve factors set forth
in Douglas v. Veterans Administration, 5 M.S.P.B. 313, 5
M.S.P.R. 280 (1981), for an agency to consider when deter-
mining whether a penalty is appropriate.
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6 COOPERMAN v. SSA
notoriety of Mr. Cooperman’s offenses or the potential for
rehabilitation, and that an appropriate evaluation
rendered removal the appropriate outcome.
Mr. Cooperman now appeals.
II
Our review of Board decisions is limited. Whiteman v.
Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A
final decision of the Board must be affirmed unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see also Potter v. Dep’t of Veterans Affs.,
949 F.3d 1376, 1379 (Fed. Cir. 2020).
III
Mr. Cooperman raises three arguments on appeal.
First, Mr. Cooperman argues that the Board’s decision to
remove him for the neglect of duties charge was arbitrary
and capricious. Second, Mr. Cooperman argues that the
Board denied him due process, specifically because
“conduct unbecoming” is impermissibly vague and because
the Board did not allow him to supplement the evidentiary
record after the close of evidence. And third, Mr.
Cooperman argues that the Board incorrectly held that
removal was the appropriate remedy. We address each of
these arguments in turn.
A
Mr. Cooperman argues that the neglect of duties
finding should be reversed for three reasons: first, because
he was allowed to make CPOD decisions based solely on a
claimant’s assertion that their medical condition had
improved; second, because the standard for “adequately”
summarizing his off-the-record proceedings was vague;
and third, because he eventually corrected how he handled
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COOPERMAN v. SSA 7
claimants’ personally identifiable information. Pet. Br. 12–
17, 25–29. None of these arguments is persuasive.
Mr. Cooperman relies on POMS DI 28010.015(C)(2) 2,
which says that [“i]mprovement in symptoms alone,
without associated changes in signs or laboratory findings,
may, however, support finding [medical improvement]”
(emphasis added), to argue that a claimant’s assertions
about her symptoms alone can constitute sufficient
evidence to decide a CPOD claim. We do not agree, because
doing so would require us to give more authority to an
internal guidance document than the statutory or
regulatory frameworks that bind administrative law
judges. This sentence from the POMS—which is merely an
internal manual with no binding authority—cannot
supersede the statutory and regulatory framework that
administrative law judges are required to follow. Courts
have recognized that the POMS is merely a document to
guide administrative law judges and does not replace or
supersede any corresponding regulations. See e.g., Wash.
State Dep’t of Soc. and Health Servs. v. Guardianship Est.
of Keffeler, 537 U.S. 371, 385 (2003) (noting that POMS are
just “the publicly available operating instructions for
processing Social Security claims”).
The parties dispute whether there is a direct conflict
between the POMS, which, as we have noted, provides that
[“i]mprovement in symptoms alone, without associated
changes in signs or laboratory findings, may, however,
support finding [medical improvement],” and the
applicable regulations, which require that any decision
finding medical improvement “must be based on
improvement in the symptoms, signs, and/or laboratory
findings associated with [the] impairment(s).” 20 C.F.R.
2 Mr. Cooperman actually cites to POMS DI
28010.015(A)(2), but the current version with this lan-
guage is found at 28010.015(C)(2).
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8 COOPERMAN v. SSA
§ 404.1594(b)(1) (emphasis added); 20 C.F.R.
§ 416.994(b)(1)(i) (containing identical language). We need
not resolve this dispute. Whether or not there is a conflict,
the regulations are governing while the POMS is not.
Moreover, Mr. Cooperman was repeatedly instructed he
could not base CPOD decisions solely on a claimant’s word,
and his failure to comply with that direction provides
substantial evidence for the Board’s decision, regardless of
whether the POMS and the regulations conflict with one
another.
For his summary of off-the-record proceedings,
Mr. Cooperman claims that the standard for appropriate
summaries was impermissibly vague. But Mr. Cooperman
does not explain why the standard is vague, especially
given how much training he received about memorializing
off-the-record proceedings and the specific directive he was
given. Mr. Cooperman makes general arguments that his
summaries were adequate and that the agency only looked
at a small sample of his decisions, but he does not argue
why the Board’s findings regarding his summaries were
unsupported by substantial evidence. Mr. Cooperman does
not deny that he received multiple trainings on how to
appropriately memorialize off-the-record conversations on
the record. Because Mr. Cooperman has not explained how
the Board’s decision lacks substantial evidence or contains
any legal error, we see no basis to disturb the Board’s
findings.
Finally, as for Mr. Cooperman’s handling of claimants’
personally identifiable information, Mr. Cooperman
merely argues that he eventually corrected his conduct.
Pet. Br. 26. Mr. Cooperman relies on the Board’s decision
in Adamek v. U.S. Postal Serv., 11 M.S.P.B. 482 (1982),
where the Board held that the agency is barred from
combining two actions for which there was already an
adverse action taken, into a new charge to take a more
severe adverse action. We agree with the Board’s
conclusion that Adamek does not apply here because
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COOPERMAN v. SSA 9
Mr. Cooperman was not subject to an adverse action
regarding his mishandling of personally identifiable
information. Mr. Cooperman admitted that he failed to
encrypt emails containing personally identifiable
information and has not explained why the Board’s finding
on that admission was unsupported by substantial
evidence.
As a result, we are unpersuaded by Mr. Cooperman’s
arguments regarding his neglect of duties charge, and we
find that the Board’s determination for that charge is
supported by substantial evidence.
B
Next, Mr. Cooperman argues that he was denied due
process for two reasons: first, because the charge of
“conduct unbecoming” is impermissibly vague; and second,
because the Board did not allow him to submit additional
evidence after the record was closed. Pet. Br. 18–25. We
disagree with Mr. Cooperman on both counts.
The specifications underlying Mr. Cooperman’s
conduct unbecoming charge fall into two categories in 5
C.F.R. § 2635.101(b): breach of duty of impartiality at (b)(8)
and breach of duty to avoid creating the appearance of a
violation of a law or ethical standard at (b)(14).
Mr. Cooperman does not specifically challenge any of the
specifications underlying this charge, nor does Mr.
Cooperman deny the content of any of the emails that led
to this charge. Instead, Mr. Cooperman invites us to create
a new standard by which administrative law judges are
“only subject to discipline for a violation of any Federal or
State Law, or any written policy expressly and specifically
defining what constitutes a violation.” Pet. Br. 24.
Mr. Cooperman does not provide any legal reasoning or
support for this request, and we decline his invitation.
Furthermore, Mr. Cooperman asks us to overturn two of
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10 COOPERMAN v. SSA
our cases 3 upholding the removal of administrative law
judges for conduct unbecoming charges, but again does not
provide any rationale for us doing so. Thus, Mr. Cooperman
has not persuasively explained why his “conduct
unbecoming” charge is impermissibly vague.
As for his efforts to supplement the closed record,
Mr. Cooperman argues that the Board abused its
discretion by refusing to supplement the closed record with
more emails he gathered supporting his argument that
administrative law judges could follow guidance in the
POMS. Pet. Br. 19–20. But the Board need not accept any
additional evidence or argument after the record closes
unless it is new and material. 5 C.F.R. § 1201.114(k).
Mr. Cooperman has not explained how any of the emails he
sought to add to the record contained “new” or “material”
information—in fact, the record already contained
evidence that administrative law judges could consider
guidance in the POMS, but could not use it to replace or
supersede regulations. Thus, we are unpersuaded that the
Board abused its discretion by declining to accept this
additional evidence after the record closed.
Because both of Mr. Cooperman’s arguments regarding
his due process rights are unavailing, we hold that the
Board did not violate any of Mr. Cooperman’s due process
rights while handling his removal case.
C
Finally, Mr. Cooperman argues that even if both
charges could be sustained, removal was not the
appropriate remedy. Pet. Br. 28. Beyond reiterating
arguments that we have already rejected in previous
3 Mr. Cooperman asks us to overturn Long v. Social
Security Administration, 635 F.3d 526 (Fed. Cir. 2011) and
Abruzzo v. Social Security Administration, 489 Fed. App’x
449 (Fed. Cir. 2012) (non-precedential).
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COOPERMAN v. SSA 11
sections, Mr. Cooperman does not identify any errors with
the Board’s decision to remove him, nor does he challenge
the Board’s analysis of the Douglas factors. Here, we see no
reason to disturb the Board’s determination that removal
was an appropriate remedy considering the severity of
Mr. Cooperman’s conduct. The Board sustained both
charges underlying the agency’s request to remove
Mr. Cooperman from his position, and nothing in the
record requires a re-evaluation of the Douglas factors or
the Board’s conclusion to remove Mr. Cooperman from his
position. Thus, we hold that the Board’s decision removing
Mr. Cooperman from his position was supported by
substantial evidence.
IV
We have considered Mr. Cooperman’s remaining
arguments and find them unpersuasive. Accordingly, we
affirm the Board’s decision granting the agency’s request
to remove Mr. Cooperman from his position as an
administrative law judge.
AFFIRMED