NOTE: This disposition is nonprecedential.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, Washington, 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 Association of Administrative Law Judges/IFPTE.

______________________ 

Case: 22-1915 Document: 75 Page: 1 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-therecord 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 District 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 hearing regarding a ‘proposal’ Plaintiff apparently felt pressured 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 instructions for explaining the basis for a CPOD determination, as 

well as instructions for memorializing off-the-record discussions. 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 determinations 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 October 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 conversations 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 factors1 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 determining 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 language is found at 28010.015(C)(2).

Case: 22-1915 Document: 75 Page: 7 Filed: 05/16/2023
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 cases3 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 

Case: 22-1915 Document: 75 Page: 11 Filed: 05/16/2023