• June 5, 2013

DespairWhen a worker suffers from a significant physical injury or an obvious mental condition (e.g., schizophrenia or delusional psychosis), our social safety net generally works well to diagnose the conditions and, we all hope, to take care of the afflicted.

But depression is different.  As with some kinds of soft tissue injuries, or subjective reports of chronic pain, many of us have trouble understanding these fairly widespread and challenging problems.  We struggle for consensus on the best ways to deal with those among us seeking support for such non-falsifiable conditions.  Not only can’t we all agree on a clear diagnosis, not coincidentally, we of course know of no sure-fire cures.

A successful appeal of a denial of social security benefits handled by Eagan, Minnesota attorney Neut Strandemo and grappled with by U.S. Mag. Judge Tony N. Leung and U.S. District Court Judge John R. Tunheim (D. Minn.) highlights the challenge.

It seems that the case of Douglas Barber has been a close one for our disability benefits system. Oversimplifying the detailed analysis of the various decision makers, we can summarize the court of Mr. Barber’s application as follows: his application for benefits was denied by the social security administrative law judge (“ALJ”), that decision was challenged by U.S. District Court Judge Leung who remanded the case for further work by the ALJ, and Judge Tunheim agreed with Judge Leung’s ruling, adopting Judge Leung’s Report & Recommendation (“R&R”), but then Judge Tunheim denied Barber’s lawyer’s application for award of attorneys’ fees as a “prevailing party,” ruling that there was “substantial justification” for denial of benefits, even though the decision denying benefits may have been incorrect.

“[T]he Court finds that the Commissioner’s position was substantially justified, even though not correct,” Judge Tunheim ruled.  “[T]he Commissioner’s position was justified to a degree that could satisfy a reasonable person and therefore that an award of fees to Barber is not warranted.”

It is surely frustrating for Barber’s counsel to win an appeal, to have, at least for now, snatched victory from the jaws of defeat for his indigent client and not to be awarded the fees for his hard work.  For now, he will have to be satisfied with knowing he’s done his job well and he deserves congratulations for that.

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