Social Security 2008 - Mastery Exercise No. 4

Due: No later than 11:55 p.m. April 6 (Sunday night)

Remember that this is not a research problem. While you should consult the relevant portions of the Act and Regulations, you are not expected to go outside the course readings, presentations, and discussion on the topics we have covered up to now.

Keep a copy of your submission. I would suggest that you prepare your response in your favorite word processor, save it, and then copy and paste the text into the box below. (But don't forget to add your name.)

The course database should respond to your submission with a confirmation number. In the unlikely event that the system is not functioning, send me an email to report the problem and try a bit later. If the problem persists and the deadline looms send your submission by email.

Representing Lynette Sandoval, (see Mastery Exercise No. 3) you have secured a district court decision remanding the case for further proceedings. There is, however, one important difference between the facts of this problem and the prior mastery exercise -- namely when you submitted the report from Dr. Boraks. In the scenario for this problem, despite your best efforts to secure Dr. Boraks' report in time for the ALJ hearing, it didn't arrive in your office until a month later. At the hearing you spoke of your hope to have a report from Dr. Boraks soon and asked that the hearing record be kept open pending its receipt. The ALJ indicated that she would hold the record open for two weeks, but that if the report was not received within that time, absent a showing of good cause to extend the period, she would proceed to issue a decision without considering it. As noted above, you were not able to meet that deadline. You submitted Dr. Boraks' report to the ALJ as soon as you could, but the ultimate decision made no reference to the doctor's findings nor did the hearing record incorporate the report. In all other respects, the facts of this problem are the same as set forth in Mastery Exercise No. 3 with all the dates set 2 years earlier.

You included the Boraks report with your request for Appeals Council review; but review was denied. To the district court you argued the following points:

To your dismay, what you got from the judge was a terse memorandum and order remanding the case. In pertinent part it reads:

Under the law of this circuit the additional evidence submitted by the plaintiff after the ALJ hearing but before the matter went to the Appeals Council must be considered in our "substantial evidence" review since it was part of the record before the agency. This Court finds that it cannot perform a meaningful review of that record without an understanding of the weight attributed to that additional evidence by the Commissioiner. Accordingly, the undersigned does not address the issues raised by the parties but remands the case for explicit consideration of the claimant's post-hearing evidence.

AND NOW, this 31st day of March, 2008, upon consideration of the cross-motions for summary judgment, it is hereby ORDERED that:

1. Plaintiff's motion for summary judgment is DENIED.

2. Defendant's motion for summary judgment is DENIED.

3. This case is REMANDED to the Commissioner of the Social Security Administration for proceedings consistent with this opinion.

You had asked and hoped for an order like the one directed in Singh v. Apfel, namely remand for an award and calculation of benefits on the ground that placing Ms. Sandoval in her proper place in the medical listings or grids should yield a determination of "disabled."

Allowing for normal delays in the administrative process it appears that your client will be entitled to retroactive benefits of over $40,000 should her claim prevail at a hearing on remand (five plus years of benefits at her PIA). On the other hand, there is no guarantee her claim will prevail under the terms of the district court remand.

You have a contingent fee agreement with Ms. Sandoval that reads, in pertinent part:

I agree to pay my attorney an amount equivalent to twenty-five percent (25%) of the total amount of the past due benefits accrued from the time of disability or the first entitlement started through the time my benefits are received subject to the limitation noted below.* I understand that this fee includes 25% of ALL my Social Security benefits including those paid on my earnings record or on account of any dependents, and as well as those paid in the form of Supplemental Security Income. I understand that A. Attorney, esq. and Associates is not going to charge me a fee in advance and that they will not charge me any fee at all except the amount for expenses unless I win. In the event that a filing in Federal court is required and a fee is awarded under the Equal Access to Justice Act the amount awarded shall belong to A. Attorney to extent permitted by law.

* In the event my benefits are obtained as the result of a first hearing before a Social Security Administrative Law Judge or subsequent Appeals Council review and do not require an action in Federal court, my fee will be no more than $5,300 even if 25% of those benefits is a larger number.

Please address the following three interrelated questions (each in no more than one paragraph):

(1) Would it be feasible and in the client's interest to appeal the failure of the judge's decision to address your specific claims and direct an award, but instead to remand for a second hearing?

(2) If there is no appeal, is it to the your advantage (as distinguished from your client's) to apply for an award of attorney's fees under the Equal Access to Justice Act?

(3) If that is done, when should the application for EAJA fees be filed -- now or after the hearing?


Your name:

Note: This and the other three mastery exercises will count significantly toward the "class participation" element of your final grade for the course.