Children's Law Clinic client awarded $20,000 in wrongfully denied Social Security benefits

September 3, 2013Duke Law News

A Children’s Law Clinic client was recently awarded almost $20,000 in benefits that had been wrongfully denied by the Social Security Administration (SSA).  Katherine Musbach ’13 and Kristin Cobb ’14, along with Supervising Attorney Brenda Berlin, worked for two and a half years navigating the Social Security appeals process before finally getting a fully favorable decision for Jacob,*  a 12-year-old boy with multiple disabilities.  The decision came from the Social Security Appeals Council, the last step before federal court in the appeals process.    

 “A win at the level of the Social Security Appeals Council is quite an accomplishment,” Berlin said. “Recent statistics show that the Appeals Council issues fully favorable decisions in less than two percent of the cases it hears.” 

Both students who worked on the case developed a strong commitment to their client, especially after becoming familiar with his troubling past.  Jacob was born prematurely to a drug addicted mother.  He spent the first weeks of his life hospitalized and the next three years in an abusive and unstable home.  At age three, when Jacob’s mother became homeless, his grandmother and her husband took him in.  Because his mother was later incarcerated for kidnapping and theft, he has remained with his grandmother, who will manage the money for him. 

At a very young age, undoubtedly as a result of his traumatic childhood, Jacob demonstrated violent and self-injurious behaviors.  Although a bright boy, who initially was placed in gifted classes, Jacob’s behaviors were so disruptive he had to be removed from the gifted classes and put in special education.  He struggled academically, socially and behaviorally and was constantly being suspended.  His grandmother tried medication and therapy to help control his behaviors, but his problems continued to worsen.

In September 2009, Jacob’s grandmother applied for Supplemental Security Income (SSI) benefits in the hopes of getting some money to pay for better therapeutic services for him.  (SSI provides a monthly cash payment to low-income disabled children.)  After the application was denied by the SSA more than a year later, Jacob’s grandmother called the Children’s Law Clinic for help.   Musbach, then a summer student working in the Children’s Clinic after her 1L year, gathered affidavits from Jacob’s teachers and therapists and submitted a legal memorandum in support of an appeal to an SSA Administrative Law Judge (ALJ).  Another year later, the case was finally scheduled for a hearing, just a few days after Musbach started in the Clinic as a 2L. She was able to pick up where she left off, representing Jacob at the hearing.   Katherine presented written and oral testimony from a variety of witnesses on Jacob’s behalf and made an oral argument supporting his claim for benefits. 

“Working on this case was one of the best experiences that I had in law school,” Musbach said.  “The wide variety of legal experience I gained was much more than I had hoped to and it helped me to realize how much I enjoy the practice of law and reaffirmed my decision to come to law school in the first place.” 

Despite the strong testimony and legal argument, the ALJ denied the claim.  The Clinic filed an appeal to the Appeals Council during the summer of 2012.  Supervising Attorney Brenda Berlin wrote the initial brief, alleging several legal errors.  While that appeal was pending, Jacob’s grandmother notified the Clinic that Jacob’s condition had significantly worsened and he had been placed in a psychiatric hospital.  As a result of his hospitalization, he received a new diagnosis: bipolar disorder.  

The new diagnosis presented a perplexing legal issue.  The evidence of bipolar disorder seemed strong enough to support a new claim for benefits going forward, but the law does not allow an applicant to file a new application while an appeal is pending.   On the other hand, the Appeals Council does not routinely allow new evidence to be added to an existing claim after the appeal has been filed.  Thus, a decision had to be made:  file a new application and abandon the appeal –thus losing the chance to be awarded benefits retroactively to 2009 – or continue with the appeal and try to persuade the Appeals Council to consider the new evidence. 

The Clinic did extensive research and counseling on this issue and decided to press on with the appeal.  Cobb , then a 2L enrolled in the Clinic, was assigned the case.  She worked tirelessly doing legal and medical research to help support the argument that Jacob’s new diagnosis should be considered by the Appeals Council.  She wrote an extensive supplement to the original brief and filed it with the new evidence. 

“As a 2L, I never imagined that the work I would do over the course of the semester could have such a transformative result on a family’s life,” Cobb said.  “Participating in the Children's Law Clinic is easily the best decision I have made in law school.  Not only was I was able to practice and improve my oral advocacy and legal writing skills, but, more importantly, I was able to truly make a difference in the lives of students and their families.” 

 In July 2013, the Appeals Council not only agreed to consider the new evidence, it reversed the ALJ’s denial and issued a fully favorable decision, finding that Jacob had met the disability standards since the time of his 2009 application.  As a result, Jacob was awarded $19,938 in back benefits, as well as future monthly benefits that his grandmother can use towards appropriate therapy, medications and after-school care. 

The Children’s Law Clinic has won most of its SSI cases at earlier stages.  Of those that have been heard by Administrative Law Judges, the Clinic has won 86% of the time- well above the national average.  “In addition to resulting in awards of critical financial support for disabled children, the SSI cases provide a rich learning experience for law students,” Berlin said.  “Students engage in interviewing, deciphering and understanding medical records, collaborating with other professionals to obtain evidence, learning the complex legal standards related to disability, developing a legal strategy, writing briefs, and preparing witnesses and presenting testimony.”

* Jacob’s name has been changed to protect client confidentiality.

 

Other News