Disability Law Blog

Seventh Circuit Affirms Step 5 Denial of Disability Benefits

The Seventh Circuit, in an opinion by Circuit Judge William J. Bauer, affirms a step 5 denial of a concurrent claim for disability benefits. In its decision, the court takes some pains to discuss strategies for effective appellate advocacy. Here's one hint:

At the outset, we note that White made identical arguments before the magistrate judge, which were all rejected, and he has made no effort to distinguish the magistrate's reasoning and conclusions. It is true that we owe no deference to the district court in the social security context, and that White is not necessarily obliged to address its analysis. Groves v. Apel, 148 F.3d 809, 811 (7th Cir. 1998). But it is a risky tactic, especially where, as here, the magistrate or district judge has issued a thorough and persuasive opinion.

The Seventh Circuit makes mp3 recordings of oral argument available, a really commendable and useful feature of its website. Oral argument in this case is available here.

Schnaufer on the New Blue Book

Eric Schnaufer has posted a useful commentary on the new Blue Book from the perspective of a Social Security appellate attorney. A must read.

Updated Circuit Court Assignments for Appeals Council Branches

From JOA on the Connect board comes this link to a HALLEX provision from December 23, 2004 updating geographical assignments for the Appeals Council branches in the Office of Appellate Operations. JOA's decoding hint: "The numbers in parens under “circuit jurisdiction” are the terminal two digits of the SSN. For example, all requests for review from the 1st, 3rd, and 4th circuits are split 5 ways between Branches 4, 5, 6, 7, and 8, with Branch 8 getting those with SSNs xxx-xx-xx60 to xxx-xx-xx79. "

Andy Frey on How to Write a Good Appellate Brief

Via Ernie the Attorney:  "Andy Frey has argued over 60 cases in the United States Supreme Court (including, notably, BMW v. Gore).  And, as I recall, he was mentioned in Lincoln Caplan's wonderful book The Tenth Justice, which chronicled the Office of the Solicitor General (a/k/a the 'Tenth Justice').  Mr. Frey has some wonderful advice about how to write an effective appellate brief."

Fourth Circuit Adopts Proposed New Local Rule 10(d)

On January 28th, the Fourth Circuit published a notice which reads in part:

Proposed new Local Rule 10(d) requires partial redaction of certain personal data from documents filed with the Court. In compliance with the United States Judicial Conference Policy on Privacy and Public Access to Electronic Case Files, parties must partially redact social security numbers, dates of birth, financial account numbers, names of minor children, and (for criminal cases) home addresses from documents filed with the Court. Parties will be permitted to file documents containing unredacted information under seal if they also file a redacted copy for the public file. The proposed new local rule also provides detailed information on the Court’s sealing procedures.

The new rule is effective March 29, 2004, subject to revisions in light of any comments received on or before March 26, 2004.

20 Questions for 9th Circuit Judge Stephen Reinhardt

Over at How Appealing, Howard Bashman (who just opened his little boutique) has posted his 20 Questions for Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. Very interesting reading:

"I suppose that I first realized that my views would often differ from those of the majority of the Supreme Court in 1986, when President Reagan elevated Justice Rehnquist to Chief Justice and appointed Antonin Scalia to be an Associate Justice. President Reagan made no secret of his desire to alter radically the composition of the federal judiciary from his first days in office. What these appointments did was make it plain that future Supreme Court opinions would not only reach different results, but would generally look and sound much different from those issued during the post-New Deal era of enlightenment -- that there would be a retrenchment in the scope of the rights afforded all Americans. As the President appointed more and more federal judges -- with very few exceptions individuals who passed the Reagan Administration's various ideological and issue-specific litmus tests -- the courts gradually shifted farther and farther to the right of the ideological spectrum."

Even those who would argue that the shift was not radical would be hard pressed to say that the judicial system, as a whole, was not considerably more conservative and far more interested in states rights and less in civil rights in 1988 than it was in 1980 when I was appointed. This rightward turn was made complete in 1990 and 1991, when the first President Bush replaced Justices Brennan and Marshall with Justices Souter and Thomas, thereby replacing the last true liberals on the Supreme Court with one moderate and one extreme conservative. Unfortunately, the policy of "judicial restraint" that we were told would result from this transformation has paradoxically resulted in an increasingly active judiciary, willing to strike down a litany of congressional laws and executive regulations that previously would have been considered unexceptional. The casualty of this movement has been the concern for social justice and individual rights that once served as the guiding principle of the judicial branch.

20 Questions for 10th Circuit Chief Judge Deanell Reece Tacha

Over at How Appealing, Chief Judge Deanell Reece Tacha answers Howard Bashman's "20 Questions for the Appellate Judge." Good reading with an important section on pronunciation:

"I have been asked often about the derivation and pronunciation of my last name. Tacha is my married name. My husband's family is Czech and the surname is of Czech derivation. We are told that the name originally in Bohemia was spelled "Ptacha." At some point during their immigration to America, the family dropped the "p" but kept the "c." The "c" is silent so Tacha is pronounced "Ta-ha." I have wished many times that they had dropped the "c" out of it as well. It would have made pronunciation much easier.

My maiden name is Reece – a good Welsh name which is much easier to pronounce! My first name also confounds many people. Rather than being a misinformed corruption of the French "Danielle," it is a very Americanized combination of my two grandmothers' names: "Dean" and "Nell"!"

A short bio is here.

Web Guide to U.S. Supreme Court Research

Via LLRX:  Gail A. Partin, an Associate Law Librarian in the Sheely-Lee Law Library at Penn State’s Dickinson School of Law has written a very useful guide to U.S. Supreme Court Research:

The Web Guide to U.S. Supreme Court Research is intended to facilitate the convenience and speed that we expect when turning to the Internet for our research needs. Often, we are unimpressed by the performance of search engines primarily because of problems with the quantity or relevancy of the results. This Web Guide attempts to overcome the shortcomings of general web searching by providing a selection of annotated links to the most reliable, substantive sites for U.S. Supreme Court research. The sites mentioned here focus predominantly on information that is freely, or inexpensively, available on the Internet.

Published December 22, 2003.

Edward Lazarus: On Why The Proposal to Allow Citation of Unpublished Opinions is a Bad Idea

Edward Lazarus writes this article on Findlaw, opposing the proposal to change the Federal Rules of Appellate Procedure to allow citation of unpublished opinions. The article is an accurate (and thus depressing) portrayal of the current state of appellate decision-making, especially from the perspective of an attorney representing the solitary Social Security Disability benefits claimant. Mr. Lazarus writes:

Given the avalanche of federal litigation, appellate judges are constantly engaged in triage. They must separating the relatively routine cases, to which they will devote relatively little attention, from the more difficult and complex cases that require a substantial investment of judicial resources.

The U.S. Court of Appeals for the Ninth Circuit, for example, has a formal process for "weighting" cases. Under this process, the Court Clerk assigns each case a numerical degree of difficulty ranging from 1 to 10. Judges can then look to the weighting as a rough benchmark of the degree of difficulty the case is likely to present.

And even in Circuits that lack a formal system like the Ninth Circuit's, appellate judges, by necessity, will reserve their time and energy for those relatively few cases that will make new law, or are of unusual significance. And it only makes sense for them to do so -- just as it makes sense for a surgeon to give the person with cardiac arrest more time and care than the person with a hangnail.

If what Mr. Lazarus says is true (and there's little reason to doubt it--just read Judge Posner's take on this issue in Howard Bashman's 20 Questions), most Social Security case becomes "routine," receiving little, if any, attention from federal appellate judges. In the Fourth Circuit, where I practice, the number of two-paragraph, per curiam, unpublished decisions in Social Security cases would suggest that Mr. Lazarus hits the nail on the head. A rule change would make little practical difference in these cases; even now, the Court rarely addresses the merits of the claim in its unpublished decisions.

Tradeoffs are made, and to best use scarce judicial resources, perhaps they must be. Still, the routine treatment of routine cases can be a painful and abiding reminder that perfect justice doesn't exist in a very imperfect world. When a per curiam decision affirms, without discussion, a decision denying any hope of an income, the "routine" man with the "uncomplicated" case is dealt a devastating blow. Perhaps some explanation from the Court, beyond the we've-reviewed-your-case-and-find-no-error, would soften the blow. It doesn't usually happen, and that's a shameful thing.

20 Questions for 7th Circuit Judge Posner at How Appealing

Howard Bashman over at How Appealing has posted December's 20 Questions for Seventh Circuit Judge Richard A. Posner.

For recent Social Security disability decisions authored by Judge Posner, see Henderson v. Barnhart, No. 03-1828, __F.3d __ (7th Cir. November 12, 2003) and Keys v. Barnhart, No. 02-4219, __ F.3d __ (7th Cir. October 29, 2003).

If you'd like more from Judge Posner, try Law, Pragmatism and Democracy at Amazon.

Advice on Appeals Council Practice

Eric Schnaufer recently posted this article on his website regarding best practices at the Appeals Council. Another must read for both new and experienced practitioners.

Schnaufer on District Court Litigation

Eric Schnaufer has posted an excellent primer on litigating Social Security cases in U.S. District Court on his website. This material comes from his presentation at last week's NOSSCR conference in Chicago. If you do any federal appellate work, this is a must read.