A Providence, Rhode Island law firm has put out a press release about an opinion it received from the U.S. Court of Appeals for the First Circuit in a Social Security case. The opinion came out over a year ago. I don't know why they waited so long but I think the firm has a right to crow. They got 30 years of back Social Security disability benefits for their client as a result of the unpublished opinion. Unpublished opinions aren't secret. It's just that the Court decides that the opinion isn't of sufficient importance to have it published in the official reporter. Most opinions are unpublished. I think maybe this one should have been published.
11 comments:
I don't know these attorneys but I know their work. It's excellent. BTW, district courts in the First Circuit do welcome citations to Fist Circuit unpublished opinions.
ALJs simply stating that there is no basis for reopening a determination from a prior filing is supposed to be enough to ignore the prior filing and process the disability award with the current date of filing.
Attorneys and claim reps alike have to be baffled by how this happens. Other claim reps at the PSC often process the claim and refer it a program specialist because we often find that the prior filing should have been reopened.
I understand the timeframe for reopening a prior determination, but if a claimant is found disabled with the same onset date they used in prior filings, we need to be looking at reopening prior decisions and not restricting them to the current filing date.
The details of the press release speak well of Attorney Nesselbush for the way he avoided speaking about reopening.
There’s a somewhat obscure provision of the reopening regs at 20 CFR 404.988(c)(8) that allows for an any-time reopening if the outcome “is fully or partially unfavorable to a party,” the catch being that this can happen “only to correct clerical error or an error that appears on the face of the evidence that was considered when the determination or decision was made.” But typically, the 4-year horizon for DIB reopening, properly measured, means that the passage of time forecloses any reopening. (See SSR 68-12a for how this can work out for res judicata.)
At least from the press release, the back benefits didn’t come from a reopening. They flowed instead from application of SSR 91-5p. It's a fairly common error to conflate the good cause provisions of SSR 91-5p with the good cause provisions for reopening. SSR 91-5p isn’t about reopening. It’s about breathing new life into an old appeal, even when the appeal might be 20 or even 30 years late.
The Marasco & Nesselbush folks don’t appear to have conflated SSR 91-5p with reopening. Here are two paragraphs from the press release that demonstrate this:
In a decision dated April 29, 2011, the judge found that Frusher’s schizophrenia was, in fact, good cause pursuant to SSR 91-5p for his failure to appeal the denials in 1975 and 1978. Therefore, his estate would be entitled to Social Security disability benefits (SSDI) dating from 1975 until the date of his death.
. . . .
Attorney Nesselbush further observed that no one should give up hope if he or she is unjustly denied disability benefits. ”The appeals process is lengthy and strictly regulated, but at the end of the day, if a claimant is too ill to appeal an unfavorable ruling, he or she is entitled to special consideration under Social Security’s regulations.”
JOA
It's all about equal protection under the law and blah, blah, blah and, oh yes, a big old chunk of fees for the firm out of a widow's mite.
I love how the same Ayn Randian right wingers that deplore socialism hate it when lawyers do things for money.
"The opinion came out over a year ago. I don't know why they waited so long but I think the firm has a right to crow."
The reason the law firm waited to crow is that the opinion only remanded the case. The widow was not awarded the 30 years of past-due benefits until a new hearing earlier this year (April).
JOA's post also demonstrates why the distinction between arguing reopening vs. 91-5p is important. Had the attorney argued reopening, the attorney would have been required to argue that a colorable constitutional claim was involved, or that SSA had already de-facto reopened the claim. Both arguments would have probably been losers. The Federal courts generally consider reopening to be discretionary on the part of SSA, and they are loathe to order SSA to reopen a case if SSA declines reopening.
91-5p on the other hand, is simply a matter of proving mental inability to understand appeal rights, in which case the right to appeal runs indefinitely.
The attorney used the only argument that gave the client any shot in court.
why all the accolades for an attorney doing a competent job? Seriously, wouldn't it be malpractice NOT to do what this attorney did?
This just points out that most attorneys representing SSA claimant's don't actually understand the rules and as a result don't actually provide good representation for their clients.
Interesting logical jump from reading positive comments about an unusual result, to concluding that "most" attorneys representing SSA claimants are incompetent.
I wrote the complaint and the main arguments in Frusher. The vast majority of attorneys never would have litigated this case. My estimate is less than five percent of attorneys with the facts of Frusher would have litigated. No complaint ever would have been filed. M & N attorneys were very zealous advocates.
This is a great result. Eric S is absolutely correct. From the attorney's perspective, this case was a long shot, at best. Only sophisticated and dogged advocates could and would have taken this case. I am not surprised the Eric S was involved in this case.
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