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Closed Period Reconsidered

March 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

Buffalo Bruce Caulfield, in yet another feat, convinced the Appeals Council to reverse and remand a case in which the claimant had stipulated to a closed period of disability. Bruce, who had not represented the claimant at his first hearing, argued to the Appeals Council that the claimant had entered into the stipulation on the advice of his prior attorney, and that the claimant’s cognitive and emotional deficits raised serious questions about his capacity to agree to a closed period.

Additionally, Bruce secured additional evidence predating the hearing and of which the prior attorney was unaware that called into question the validity of the decision that the claimant’s period of disability ended in June 2007. The new evidence included school records with earlier IQ test results and new physical and psychiatric evidence. The Appeals Council ruled that it was evidence that should be evaluated by the ALJ. The Appeals Council, in auditing the tape, also noted that although the Administrative Law Judge (ALJ) relied on vocational testimony, the vocational experts present at both hearings were never called upon to testify.

In the “be careful what you wish for” department, the Appeals Council was quite clear that the claimant’s Request for Review placed the entire record of the case before the Council, including the partially favorable aspects of the ALJ’s decision. In fact, in addition to finding that the decision failed to evaluate the claimant’s residual functional capacity (RFC) after June 2007, it found that it was not clear whether the ALJ’s finding that the claimant had an RFC for reduced sedentary work prior to 2007 was supported. Thus, the entire claim will be subject to review on remand. We have no doubt, however, that the claimant will be well represented by Bruce, and that the risk he took in appealing will be worth it.