EAJA Offset

The recurring question of the reduction of fee awards under 42 U.S.C. §§ 406(a); 1382(d)(2) (hereafter referred to generically as “406(a)”) by the amounts awarded under 28 U.S.C. § 2412.  The question arises where counsel has submitted a fee petition or the Social Security Administration reviews the reasonableness of the fees on a review under the expedited fee process on request by the claimant, counsel, or own timely own motion.  The result is the same regardless of the scenario under which counsel seeks fees under sec. 406(a) after having first received fees under sec. 2412. 

 The uncodified portion of the EAJA provides the short answer to the question.  The Savings Provisions of Section 206 of Pub.L. 96-481, as amended by Pub.L. 99-80, § 3, Aug. 5, 1985, 99 Stat. 186, provide that:

“(b) Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) [section 406(b) of Title 42, The Public Health and Welfare] shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code [subsec. (d) of this section].  Section 206(b)(2) of the Social Security Act [section 406(b)(2) of Title 42] shall not apply with respect to any such award but only if, where the claimant's attorney receives fees for the same work under both section 206(b) of that Act [section 406(b) of Title 42] and section 2412(d) of title 28, United States Code [subsec. (d) of this section], the claimant's attorney refunds to the claimant the amount of the smaller fee.”

 (Emphasis added); see also HALLEX I-1-2-91(A).[i]  This uncodified provision articulates the intent of Congress that counsel not receive and keep both EAJA and fees under 42 U.S.C. § 406(b) “for the same work” and if counsel receives both fees then counsel shall refund the smaller fee to the claimant. 

In a case remanded under 42 U.S.C. § 405(g)(sentence 4), the court enters judgment and counsel seeks EAJA fees immediately.  The court does not retain jurisdiction and the time invested on remand is not part of the court case.  See generally Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).  Time invested by counsel either before the first exhaustion of administrative remedies or after the remand from the court are not part of the court case and are not “the same work.”  See also HALLEX I-1-2-91(B)(1). 

There are times when the EAJA fee can and should offset a fee payable under 42 U.S.C. § 406(a).  Those circumstances occur when the fee is “for the same work.”  The court retains jurisdiction and work performed on remand is part and parcel of the court case when the court remands pursuant to 42 U.S.C. § 405(g)(sentence 6).  Sullivanv. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989); Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 2162-63, 115 L.Ed.2d 78 (1991); Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993).  If and only if the court has retained jurisdiction over the proceedings on remand and awards fees pursuant to the EAJA for that time does the offset of the EAJA fee award from the fees payable for that time expended before the Social Security Administration arise.[ii] 

The policy concerns are appropriate.  The Congressional purpose in enacting the EAJA is patent.  Congress sought to offset the costs of litigating against the government where the United States could not prove that its position was substantially justified.  Scarboroughv. Principi, 541 U.S. 401, 124 S.Ct. 1856, 1861, 158 L.Ed.2d 674 (2004) citing H.R.Rep. No. 99-120, p. 4; see also POMS GN 03990.001.  In some circumstances, the EAJA fee may be the entire fee that counsel can receive.  See e.g. McGraw v. Barnhart, 370 F.Supp.2d 1141 (N.D. Okla. 2005) rev’d on other grounds 450 F.3d 493 (10th Cir. 2006).  The district court in McGraw illustrates the proposition that in many cases the EAJA fee is the only fee for the court work.  This can arise in small benefit level cases (e.g. SSI with income by a non-eligible spouse), closed period (including cases where the back benefit pool is cut off by the claimant getting benefits on a subsequent application with or without the encouragement or assistance of counsel), or other circumstances.  Reducing the fee payable for time spent before the Social Security Administration by the amount of the fee received by counsel before the courts defeats the intent of Congress that counsel only get paid once for each hour of work.  Reducing the administrative award by the court fees means one set of hours did not get paid, at all. 

It is a true observation that the claimant gets no true fee relief by the presence of the EAJA award not offsetting an administrative fee.  Where the administrative fee exhausts the 25% withheld for that purpose, the question raised is whether counsel can keep the entire EAJA fee for court work and the entire 25% for the administrative work.  The claimant has received some fee relief insofar as counsel had any incentive to take a case to the district court.  If it were not for the presence of EAJA fees, many cases would become unviable.  This would violate the intent of Congress that people have the resources to litigate against government action that is not substantially justified.  Therefore, allowing counsel to retain an EAJA fee and receive fully reasonable compensation for different hours expended before the Social Security Administration is correct.

Finally, any practice by an ALJ, ODAR, Region, or SSA generally to reduce the amount of the sec. 406(a) fees by the amount of the EAJA fees for different time means that counsel that seeks fees both before the Social Security Administration and before the courts for representation of a claimant will have the amount of the EAJA fees offset twice.  The courts will offset the amount of a fee payable under 42 U.S.C. § 406(b) by the amount of the EAJA fee.  Scarborough, 124 S.Ct. at 1862 fn. 2.  It is the court that is obligated not to offset the EAJA fee against the sec. 406(b) fee but to order counsel to reimburse the smaller of the two fees for time paid for twice. 

In light of the uncodified portion of the EAJA, the intent of Congress, and the possibility that in many cases the court will order the reimbursement against a fee payable under sec. 406(b), it is not appropriate to reduce, credit, offset, or otherwise take into account the amount of a prior EAJA award in setting the fees payable under sec. 406(a). 

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[i] This section “provides that when a representative received fees for the same work under both section 206(b) of the Social Security Act and EAJA, the representative must refund to the claimant the amount of the smaller fee.”  The “NOTE” in the following paragraph ignores the operative phrase “for the same work.”  POMS GN 03990.040 clarifies the “for the same work” requirement for offset.  See also POMS SI 00830.100(B)(5). 

[ii] A fair question, beyond the pale of this position paper, is whether time expended by counsel after remand from the court under sentence 6 should be the focus of fees under sec. 406(a) or 406(b). 

Wall Street Journal and Binder & Binder

Beginning on December 21, 2011, the Wall Street Journal began a series of articles assailing the disability system and those that work in that system. The first article focuses on Binder & Binder.  Damian Paletta and Dionne Searcey has taken the task with relish to assault the system that functions as a safety net, claiming that unemployment fuels the uptick in disability applications.

The assault on representatives and on the system as a whole constitutes a pincer attack with the apparent intent to call for a dismantling of the current structure and placing in it something different.  What Paletta and Searcey appear to have missing from the quiver is a basic understanding of the disability program and how Congress intended it to function ab initio.

The basic structure of the Act calls for disability benefits to individuals that suffer from "severe" impairments that can no longer perform not only their past work but any other work that exists in significant numbers either in the region in which the person lives or in several other regions of the country.  42 USC §§ 423(d)(2)(A); 1382c(a)(3)(B).    So if a person cannot perform his past work and because of those impairments cannot perform any other work that actually exists in the economy, that person suffers from a disability.  Throw in the other statutory factors to consider age, education, and work experience and the pool of people that meet the statutory test expands.

We have several factors that implicate an increasing number of disability applicants.  Yes Damian and Dionne, the demographics of the United States are aging.  With the baby boomers aging and the average age creeping to over 36, the incidence of disability claims in a statutory construct will increase as a matter of design.  Second, the United States witnessed the exportation of unskilled labor to countries with cheaper sources of labor and more lenient laws about workplace and pay.  Without getting into an international economics discussion of whether the presence of jobs in Mexico, Malaysia, China, or Nigeria, everyone can agree that the numbers of unskilled labor jobs in the United States has dwindled.  If a statute places benefit entitlement on the ability to perform a significant number of jobs in the economy and a whole class of work no longer exists in the economy, then the incidence of disability claims in a statutory construct will increase as a matter of design. Third, the United States economy slid headfirst into a recession beginning in 2008 and although the government would like us to believe that the recession is over we can all take notice that the true unemployment rate, including those that have given up looking for work, remains high.  The number of people not in the labor force rose by almost 2 million in just 12 months.  Because the statute places benefit entitlement on the ability to perform a significant number of jobs in the economy and a work no longer exists in the economy, then the incidence of disability claims in a statutory construct will increase as a matter of design.

So I agree with Paletta and Searcey, the number of disability claims has risen and that rise is due in part to economic conditions.  The Modest Proposal then stands quite starkly in the wind.  We can tell people with severe impairments that although they can no longer perform their past work and there is nothing else for them to do in terms of work in the economy that they must whither on the vine or we can fulfill the intent of Congress and extend the lifeline to them.  Instead of calling for an overhaul of the disability system, Paletta and Searcey ought be calling on the agency to take a closer look at the world and ask the agency to make reasonable decisions based on the workplace as it exists.

Which takes this conversation back to where it started, Binder & Binder.  We have an aging population that lives longer and survives catastrophic illness and injury because of advances in modern medicine that does not necessarily return those people to function.  Binder & Binder see clearly an economic opportunity to give significant help to a class of people that the government frequently steamrolls.  We can label those people the "arguably disabled."  Binder & Binder also seek to help those that chose not to deal with the federal bureaucracy because companies make a living preparing short form tax returns.  The government across agencies has gotten so complex that many want a professional to handle the matter.  We can label those people the "bureaucracy challenged."  Enter Binder & Binder with a business model to address both.

Paletta and Searcey report that Charles Binder received over $22 million in fees in 2010.  If we assume an average fee for a successful case of $2,000, then the report in the WSJ means that Charles Binder successfully represented 11,000 people.  The agency processed 2.5 million claims in 2005.  Report of the SSAB, chart 69.  Quadruple the number of people represented by Binder & Binder just for giggles.  Assuming that Binder & Binder represented 50,000 people successfully, that is still less than 5% of all the claims handled by SSA in any fiscal year of recent report.

And that is the untold story.  Disability claims are rising because of demographics and economics, factors built into the statute.  People with impairments are more likely to use professional representation because their cases are difficult or nuanced, or they just don't want to deal with the government while trying to deal with life.   What Paletta and Searcey see and report is of no consequence.  The sky is not falling.  The nation needs economic reforms that will take decades to play out.  In the interim, we must take care of those that suffer from severe impairments that have robbed them not only of the ability to perform their past work but also of any other work that exists in the economy.

Hardisty v. Astrue-- EAJA and Unreached Issues

 One of the frequent issues that comes up in the practice of law when fee shifting to the losing side becomes an issue concerns the question of recoverability of fees.  Many cases involve more than one issue and the prevailing party sometimes wins on all, some, or just one issue.  Sometimes the court reaches all the issues up or down, but with some degree of regularity does not decide all the issues.  The Ninth Circuit decisin in Hardisty v. Astrue decided in January 2010.  This post explores my opinions and observations on the case in particular and the subject in general. 

1.      Hardisty v. Astrue, the Boundaries of the Decision

Hardisty v. Astrue, 592 F.3d 1072 (9th Cir. 2010) cert. denied ___ U.S. ___ (2010) stands for the proposition that the Court should not consider issues it did not decide in determining substantial justification.  The Court’s reasoning is that fee litigation should not create satellite litigation and that determining substantial justification on unreached issues would necessarily require deciding those issues on the merits first.  In a case where the plaintiff prevailed, the Court decides whether the Commissioner was substantially justified administratively and in Court on the issues that the Court actually reached.  

In Casey v. Astrue, 2010 WL 2925094, *2 (E.D. Cal. 2010), the District Court did reduce the time paid by 6 hours for issues not reached, relying on Hardisty. The Court reasoned that it should not pay for time expended on issues not reached.  That constitutes an over-reading of Hardisty.  The Ninth Circuit held that issues not reached cannot form part of the calculus of whether to pay fees under the substantial justification analysis.  The issue of whether the Court should pay for such time became moot once the Court reached the issue before it in the negative.  Any reading of Hardisty for the proposition that the Court can or should deny fees for issues not reached or issues decided adversely to the plaintiff violates the law of the circuit.  See Natural Resources Defense Council, Inc. v. Winter, 543 F.3d 1152, 1162 (9th Cir. 2008) citing Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001).  Even in the event of limited success, the prevailing plaintiff recovers a full fee absent some special circumstance under the Equal Access to Justice Act.  For instance, raising a frivolous issue might satisfy the special circumstance question. 

Even if Hardisty wrote on a blank slate, a reading foreclosing compensation for some issues would not constitute the law of the circuit.  United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of Kozinski,.J.) (plurality) holds that:

where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.

The question of what could be paid in Hardisty was never germane to the question of whether Hardisty could overcome the Commissioner’s affirmative defense of substantial justification on the issue reached by the District Court in that case.  It would constitute an anomalous state indeed where a plaintiff could recover for an issue on which he lost under Winter and Sorenson but not recover on an issue that the Court did not reach.  The Court should reject the Casey extension of Hardisty as unwarranted and not justified by any part of the Hardisty opinion germane to the resolution of the issue before the Ninth Circuit in that case.

2.     Reasonableness of Time Expended

The crux of the Commissioner’s position is that plaintiffs should not recover fees for time not reasonably expended.  Certainly the Commissioner cannot press on the plaintiffs’ bar the prescience to know which issues the Court will decide first or place upon them the Hobbesian choice of waiving certain issues on the belief that another issue will win the day.  In the case of limited success, the Court should use the same paradigm whether the plaintiff lost outright on an issue or the Court chose not to decide an issue:  was the plaintiff reasonable in briefing that issue?  The failure to prevail raises a threshold question but does not resolve the issue.  The failure to reach an issue does not cut either way. 

The Court should use an ad hoc analysis to determine reasonableness of time expended.  The issue is fact dependent.  Time spent testing the sufficiency of an articulation may frequently be reasonable.  The case of Hardisty provides an illustrative analysis.  Assuming arguendo that the Court had decided that the Commissioner lacked substantial justification, the question that would arise is whether the plaintiff reasonably expended time addressing the treating and other physician testimony.  The two issues have clear commonality.  Whether the ALJ articulated specific and legitimate or clear and convincing reasons for rejecting that testimony would necessarily require consideration of the medical baseline, i.e. by how much does the plaintiff’s complaints of limitation exceed the objectively based limitations?  In Hardisty, a reasonable plaintiff’s lawyer would either have to include a full discussion of the medical evidence inside of the excess pain analysis or segregate that discussion into an issue of the treatment of the opinion evidence.  Briefing or not briefing the opinion evidence would save little time and potentially provide a more confusing or convoluted presentation.  Similarly, the plaintiff that prevails on a treating physician opinion must prove up that the boilerplate allegation that the physician merely regurgitated the subjective complaints requires a full consideration of the plaintiff’s testimony. 

The majority of the Social Security docket come before the Court at step 4 of the sequential evaluation process.  Did the ALJ properly consider and determine the plaintiff’s residual functional capacity?  That is the issue.  The knife that cuts through that issue comes in two basic serrations:  expert opinion evidence and lay evidence.  Within those two broad classifications, there are at least seven forms of evidentiary distinction.  Because those issues blend together under Reddickv. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (rejecting the quantum of evidence approach), the circumstance where the government lacked substantial justification on one of the seven variations of residual functional capacity evidence and the plaintiff was unreasonable in briefing together or separately one or more of the other six variations should prove rare. 

More likely candidates for reasonableness analysis exist in the step 4 or 5 analysis of the ability to perform past relevant work or other work.  These two issues rely on the completeness of the hypothetical question or the variation of the vocational testimony from the DOT.  These issues always assume the adequacy of the ALJ’s determination of residual functional capacity.  When the plaintiff prevails on the ability to engage in substantial gainful activity question, it is more likely that the plaintiff may have unreasonably briefed the residual functional capacity issue on the first half of the step 4 analysis. 

The same kind of analysis holds true in the briefing of a step 2 medically determinable severe impairments question or a step 3 listings question.  Those issues have common facts but completely different legal principles than does a residual functional capacity issue.  Prevailing on step 2 medically determinable severe impairments question or a step 3 listings question would rarely if ever result in a finding that the plaintiff was unreasonable in questioning the residual functional capacity assessment at step 4.  Failing to prevail at step 2 medically determinable severe impairments question or a step 3 listings question but prevailing on the residual functional capacity question would leave open a question of reasonableness for case-by-case determination. 

3.     A Rough Application of Hardisty and Reasonableness

When a plaintiff prevails at a lower step of the sequential evaluation process, it would present a rare case that the plaintiff unreasonably briefed issues at a higher step of the sequential evaluation process.  Prevailing at steps 2 or 3 of the sequential evaluation process implies error at steps 4 or 5 of the sequential evaluation process as based on a legally or factually infirm foundation.  Although the burden of proof of reasonableness remains with the plaintiff, the burden of persuasion would shift to the Commissioner. 

When the Court is convinced that the classification of an impairment as either not medically determinable or non-severe at step 2 of the sequential evaluation process constitutes a material error in the adjudication of the claim, the Court should rarely proceed to consider the remaining steps of the sequential evaluation process unless the Court intends to order the payment of benefits on one or more of those issues. 

When the plaintiff prevails at a higher step of the sequential evaluation process and loses at the lower steps of the sequential evaluation process, the burden of proof and the burden of persuasion on the question of reasonableness would still remain with the plaintiff. 

Where the Court is convinced that the independent step 5 analysis resulted in a finding of ability to engage in substantial gainful activity arose out of legal error, the Court should never ignore the step 4 residual functional capacity question unless it is clearly frivolous or the Court is ordering the payment of benefits. 

The Eastern District of California - Fresno Division

The Law Offices of Lawrence D. Rohlfing has long had a presence in the Eastern Disrrict of California.  The representation of Social Security disability claimants stretches back about 20 years.  The office has never had a strong presence at the adminstrative level, just handling court cases for other attorneys and representatives whose clients have suffered a denial of benefits.  These cases get to the District Court after administrative hearings in Fresno and Bakersfield, all handled by the Fresno Office of Disability Adjudication and Review.

The problems start at the ODAR level.  For the fiscal year ending September 2011, the hearing office had an average allowance of 49.9%.  One very experienced judge pays 29.7% of the cases that he hears; another experience ALJ pays 38.1% of the cases that he hears.  Compare these numbers to the average allowance rate for every ALJ in the Social Security system of 62.4% and the problems begin to crystallize.  The Fresno ODAR is almost one standard deviation from the mean not as a rogue ALJ but as an office.  There are worse offices in the nation but Fresno ODAR is a bad place to have a Social Security disabiliity claim heard.  A claim has a 20% lower chance of getting paid in Fresno than in a hypothetical average ODAR. 

These cases that get denied end up at the Appeals Council.  The AC grants review in about 25% of the cases that it hears.  Some of the 75% that the AC denies end up in federal court.  The United States District Court for the Eastern District of California, Fresno Division, hears the cases that the Fresno ODAR and the AC deny. 

I do not have any statistics but my experience informs me that the Fresno District Court changed in the last 10 years.  It has become more apt to affirm bad decisions of the Commissioner of Social Security.  Perhaps this arises from a cultural shift, perhaps from an incredible case overload in cases of all types, or some other reason that escapes by narrow view.  The message in the past 5 years form the Fresno Division has been clear, it is not a claimant friendly forum. 

So how do we can we possiby detect a shift in the decisions of the Fresno District Court, principally by the Magistrate Judges in Fresno?  The Ninth Circuit Court of Appeals reviews the decisions of the District Court.  The Ninth Circuit "publishes" all of its opinions, those certified for publication in the official reports and deemed precedential and those that get classified as memorandum dispositions that lack the force of precedence.  The cases decided after November 10, 2009, are searchable by court of origin and parties.  The Ninth Circuit calls the Fresno Division the "Fresno District Court."  The Fresno District Court classifies Social Security cases as suing the Commissioner of Social Security with the abbreviation of either CSS or CSSA. 

In the last 2 years, the Ninth Circuit decided 11 cases coming out of the Fresno District Court.  It reversed in 6 and affirmed in 5.  One of the 5 affirmances was a pro per.  So in attorney represented cases, the Fresno District Court has found itself reversed in 60% of the cases.  The average reversal rate for any District Court group of decision is less than 20%.  The reversal rate over a two year period forms the basis for a real concern.  Not all deserving cases get appealed for legal, logistical, or business reasons.  If the Fresno District Court gets reversed 6 out of 10 times in attorney represented cases, experience teaches that there are other cases that suffered "affirmance of the Commissioner's decision" that did not get appealed to the Ninth Circuit. 

The system needs to work.  The public needs to have confidence that the system works.  The Social Security disability program already has the appearance of a lottery with benefits dependent on the identity of the decision-maker rather than the facts of the cases.  When an ODAR gets well below average in allowances in a program that is based on the presenced of jobs in the economy in a region bereft of jobs, then the District Court must provide real and meaningful review that holds the feet of the administration to the fire.  Administrative discretion cannot replace the public expectation of evenhanded administration of justice. 

Your mileage may vary. 

Taylor v. Commissioner of SSA

The Ninth Circuit published an important decision the end of October, Taylor v. Commissioner.  Taylor affirms the principal of Ramirez v. Shalala, 8 F.3d 1449, 1451-54 (9th Cir. 1993) that when the Appeals Council denies a request for review that included new and material evidence, the court will review the sufficiency of the decision in light of that evidence.  That isn't new but there was a battle brewing in the Ninth Circuit over whether Ramirez was good law or an anomaly where the government did not contest the issue.  Pamela Rymer had pressed the AC-evidence issue but never got any traction.  Her death in September leaves a question whether any other judge of the court will lean on that claim.  Taylor signals strongly that the battle is over. 

Taylor extends the treating physician rule to its logical step.  The Commissioner may not toss aside opinions of nurse practictioners or physcian's assistants without a germane articulation beyond the lack of "MD" status.  This makes sense.  In the world of scarce resources, many people including most particularly the poor cannot afford first class medical care.  Many see the NP or PA in the office and rarely see the MD.  Most conditions don't require the MD anyway, especially the chronically ill or injured on a maintenance program.  The decision in Taylor conforms with the Commissioner's views expressed in SSR 06-03p. 

People need access to care.  Whether the condition manifests itself as back pain, diabetes, depression, or some other manifestation of ill health, people need access.  Telling those that access care through NPs and PAs that they will lack the capacity to prove the nature and extent of their limitations before the SSA forces those individuals into a catch-22 that harms the public interest.  Without access to Medicare or Medi-Cal/Medicaid because of the receipt of care through expensive means translates later into a lack of care at all.  The vicious circle that wedding the disability program to the exclusive province of MDs and PhDs would end in less care for everyone.  Medical care is a scarce resource.  As a society, we need to marshall those resources in an intelligent and insightful manner that maximizes the good of individuals and society. 

Taylor pushes the envelope.  It should push the envelope.  The only loser from this decision are the minority of Administrative Law Judges that look for reasons to deny rather than looking for evidence of eligibility under the statutory and regulatory standards. 

Carrillo Yeras v. Astrue

Carrillo-Yeras v. Astrue is an important win for claimants seeking the disability benefits found in the Social Security Act.  Ms. Carrillo applied for benefits and received a denial by Administrative Law Judge decision.  She excercised her rights under the regulations to both file a request for review to the Appeals Council and to file a new claim for benefits with SSA.  As of this year, the agency has withdrawn that dual track process as an option for claimants denied by an ALJ.  Social Security Ruling 11-1p.  The dual track appeal and refile remains a viable option for claimants once they receive a denial of review by the Appeals Council -- they may proceed to the District Court and file a new claim.  This case will have continued ramifications even under current agency policy. 

The case is simple.  Ms. Carrillo re-filed in 2003 after the ALJ denied her first case.  The agency decided that she met the requirements for disability.  The Appeals Council granted the request for reivew of the first case and reopened the second case, sending them both back to the same ALJ for a new consolidated decision.  It is clear that the only reason that the Appeals Council granted the request for review of the first decision was to provide a vehicle to reopen the second case and allow the ALJ to make one decision applicable to both.  SSA calls this a "substitution of judgment."  Any system based on discretion must reject the substitution of judgment of one fact finder by another.  The regulations permit an out for this basic principle in reopening and revision.  20 C.F.R. §§ 404.988 and 416.1488. 

I assume good faith unless bad faith reaches up and slaps me in the face.  I entertain that the Appeals Council had a legitimate reason for reopening the grant of benefits on the subsequent claim that would permit the substitution of judgment.  The Ninth Circuit decision describes a process that took 23 months from the date that the Appeals Council stated that it would reopen to the date that the ALJ told Ms. Carrillo that he found that she was never entitlted to the benefits paid to her and her family. 

As an exception to the prohibition of a substitution of judgment, the regulations narrowly prescribe the circumstances that SSA can engage in a reopening and revision that constitutes a "take away."  The agency must complete the investigation within 6 months or diligently under the circumstances.  20 C.F.R. §§ 404.991a, 416.1491.  If the agency takes longer than 6 months and has not acted diligently under the circumstances, any change to the reopened decision must find in the claimant's favor, i.e. not a take away. 

This maes sense.  The reopening puts the claimant on the edge of the precipice.  For the next 6 months or during a period of diligent investigation to the point of decision, that person's finances and health insurance hang in the balance.  If the agency does not complete the investigation, it should not have the ability to claw back the properly paid benefits and cease the ongoing benefits.  The agency can always conduct a continuing disability review to remove the person from the disability rolls later by showing improvement or that the first decision rested on error.  SSA has its remedies.  Restricting the reopening and revision process levels the playig field and removes the punitive component of taking away granted benefits to individuals acting in good faith for those claims on the cusp.

But did you notice the name of the lawyer representing Carrillo-Yeras?  I enjoyed working on and arguing that case.  The win is just sweet. 

Aarestad v. Commissioner

I know, unpublished opinions are not precedent and don't matter much.  Unless of course you are one of the litigants in an unpublished opinion.  Aarestad v. Commissioner is a bad decision.

Aarestad applied for widow's benefits.  The Court held that she "worked only sporadically before the alleged onset of disability (which suggests that her decision not to work was not based on disability) ..."  Did I mention that Aarestad applied for widow's benefits?  Of course she worked sporadically.  She and her deceased husband made a socio-economic decision that she not work because not everyone has abandoned the one-income household model.  Some couples don't have to send both people back to work.

There are clear advantages to a single income household.  Not only the obvious with raising children but also in the mundane day-to-day of living.  If both people work, the chores of cooking, cleaning, and laundry mean that one or both members of the family are working not 40 hours per week but more like 60 hours per week.  That usually defaults to the wife, which is why married men live longer than their bachelor friends and married women don't live as long as their single friends.  Life expectancy is how we make plans.

There is a discrete difference between a lifetime of sloth and a legitimate sociological choice that is in the cultural norm.  A history of sloth can form a legitimate basis for discounting a claim of disability.  A legitimate choice to live on the wages of one partner in the marriage while the other stays home is not a history of sloth or a legitimate basis for discounting the surviving spouse's testimony.

A rule of law is based on the assumptions that under-gird that rule.  Failing to recognize the nuances of the rationale behind a rule of law is dangerous not only to the person involved but to future cases.  The infection starts in misapplication in unpublished opinions, spreads into published opinions, and pretty soon the law becomes absurd.  Charging the stay-at-home partner for a life decision that finds solid cultural and sociological underpinnings is an attack on the social fabric and the family.  The Court needs to divorce itself from the dangerous path that Aarestad takes.  Whether she otherwise deserved to win is a different story but piling on bad reasons is the kind of hyperbole and exaggeration that we all find "not credible."