Time To File EAJA In Sentence Six Remands

This may seem impenetrable to most readers, but it is actually a fairly hot issue for attorneys who do much Social Security work in federal court. From the published opinion of the 9th Circuit Court of Appeals in Van v. Barnhart, issued on February 26, 2007:

In this case, we consider whether in order to be deemed timely under 28 U.S.C. § 2412(d)(1)(B), a Social Security disability claimant who, following a remand under sentence six of 42 U.S.C. § 405(g), obtains a favorable determination from the agency and enforces it in the district court by a judgment to which the government consents must file an application for attorneys’ fees under EAJA within 30 days after the entry of judgment, or, whether he may file within 30 days following expiration of the 60-day appeal period provided for by Rule 4(a)(1)(B). We hold that such a claimant, like other successful sentence-six remand claimants, may file within 30 days after the 60-day appeal period in Rule 4(a) has expired. Thus, we reverse the district court and remand with instructions to consider Van’s fee application on the merits.

Man Burns Father's Body To Get Social Security Benefits

From WGCL:

A man who admitted burning his father's body a decade ago so the family could continue to cash his Social Security disability checks was sentenced to five months in prison and ordered to pay $133,000 in restitution. ...

Larry McWilliams died of natural causes on Jan. 13, 1997, at the family home's near Lewistown in northeast Missouri.

U.S. Attorney Catherine Hanaway said the family burned McWilliams' body to hide any evidence that he had died.

Betty McWilliams tended the fire to make sure no bones were left unburned, according to Hanaway. All three knew that Larry McWilliams' Social Security benefits would stop if his death was reported.

Rating Claimant's Attorneys

We are in the middle of a five year demonstration of allowing withholding of fees for non-attorney representatives of Social Security claimants. These non-attorneys must meet certain standards, which include passing a 50 question multiple choice exam. The demonstration also involves withholding of fees in SSI cases. The legislation that created this demonstration requires the Government Accountability Office (GAO) to do a study on non-attorney withholding and SSI withholding. It is already clear that SSI withholding is non-controversial. Non-attorney withholding remains controversial.

Someone who identifies himself or herself as "NC Rep" (and who is not me) reports on the SSAS Connect board that ALJs at the Charleston, SC hearing office have been completing individual evaluation forms on attorneys and non-attorney representatives appearing before them, apparently as part of the GAO study.

Upcoming Meetings and CLE

• March 1-2, 2007, Stetson University CLE March 1-2, 2007, Clearwater Beach, FL
• March 1-3, 2007, NADE Mid-Year Board Meeting, Washington, DC
• March 6, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• March 9, 2007 Ohio Academy of Trial Lawyers CLE, Columbus, OH
• March 13, 2007, SSAB Meeting, Washington, DC
  
• March 25-28, 2007, NADR Conference, Albuquerque, NM
• March 30, 2007, NC Academy of Trial Lawyers, Disability Advocacy Section, Annual Meeting and CLE, Raleigh, NC
  
• April 18-20 2007, NADE Regional Training Conference, Albuquerque, NM
• April 18-21 2007, NOSSCR CLE, Baltimore, MD
• April 25, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• April 27, 2007, Cincinnati Bar Association Social Security Committee CLE, Cincinnati, OH
• May 1, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• May 2, 2007, Indiana CLE, Indianapolis, IN
  
• May 2-4, 2007, NADE Regional Training Conference, Seattle, WA
• May 5-9, 2007, NADE Biregional Training Conference, Atlanta, GA
  
• May 7-10 2007, NADE Regional Training Conference, Atlanta, GA
• May 14, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• May 16, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• May 18, 2007, State Bar of Michigan Social Security Section Meeting, Lansing, MI
• May 20-23, 2007, National Association of Disability Examiners Meeting, Stowe, VE
• June 8, 2007, Minnesota CLE on Social Security Practice, Rochester, MN
• July 12, 2007, PBI CLE, Pittsburg, PA
  
• September 10-15, 2007, International Social Security Association General Assembly, Moscow, Russia
  
• September 15-20, 2007, NADE National Conference, Sioux Falls, SD
• October 17-20, 2007, NOSSCR CLE, St. Louis, MO
• November 30, 2007, Legal Services of New York Legal Support Unit CLE, New York, NY
• April 8-11, 2008 NADE Regional Conference, Austin, TX
• June 4-7, 2008 NOSSCR CLE, Miami, FL
• October 15-18, 2008 NOSSCR CLE, Century City, CA

If you know of one that I have missed, please e-mail me at charles[at]charleshallfirm.com.

Optometrists As "Acceptable Medical Sources"

Social Security has published new final rules expanding the situations in which optometrists will be considered "acceptable medical sources" for disability determination. This will allow Social Security to make disability determinations without ordering unnecessary examinations by ophthalmologists (who are M.D.s) for claimants being treated by optometrists (who are not M.D.s) and may allow optometrists to do consultative examinations for Social Security.

Social Security Office On Lovers Lane?

From the Visalia (California) Times-Delta:

A southeast Visalia neighborhood is up in arms about a proposed 12,535-square-foot Social Security Administration building that is due to go up along Lovers Lane near Tulare Avenue.

"We had no idea this was going to be built here," said Kimberlie Tyler, 31, head of a large neighborhood organization that opposes the high-traffic office building being dropped into their neighborhood.

Historical Time Frame On Fee Cap Increase

Jo Anne Barnhart was confirmed as Commissioner of Social Security on November 2, 2001, according to the online biography that Social Security has on her.

About two months later, on January 8, 2002, Barnhart signed an order order raising the cap on the amount that attorneys may charge for representing Social Security claimants from $4,000 to $5,300. This order was published in the Federal Register on January 17, 2002.

The fee cap has not been raised since Barnhart did it five years ago.

Michael Astrue was confirmed on February 2, 2007. It is unclear whether Astrue will raise the fee cap at this point or ever. If he is going to do it, it is unlikely that he cares about doing it in the same time frame as his predecessor, but it is still interesting to have an historical reference point.

ADA Restoration Act Threatens Social Security Disability Claimants

The Americans with Disabilities Act (ADA) has become virtually worthless as a result of judicial constructions. There is a bipartisan movement to enact an ADA Restoration Act to remove these judicially created barriers preventing the ADA from serving its intended purpose. See this press release from last fall issued by the top Democrat and top Republican on the House Judiciary Committee.

As a general matter, the ADA Restoration Act would be a wonderful thing. However, it could be problematic for Social Security disability claimants. There have been people arguing that the existence of the ADA should mean that far fewer people should be approved for Social Security disability benefits, because disabled people have far greater opportunities now than they had before. However, now long after the ADA was adopted the then head of Social Security's Office of Hearings and Appeals, Dan Skolar, issued a memorandum saying that the ADA could not be used in this way. I am sorry but I cannot find an online link to this memorandum. This memo has made it essentially impossible for Social Security to pursue such a policy. However, if an ADA Restoration Act passes without language to protect Social Security disability claimants, it is very likely that Social Security would revisit the issue. The result could be catastrophic for Social Security disability claimants.