Court Accepts Cert in Another Social Security Case

Empire Justice Center January 28, 2019

The United States Supreme Court has three cases  involving the Social Security Administration (SSA) on its docket this term.  The Court recently heard oral arguments in Biestek v. Berryhill, a case concerning vocational expert testimony, described in the July 2018 edition of this newsletter.


On January 7th, the Court issued a decision in Culbertson v. Berryhill, — U.S. – (2019).  The question presented was whether the 25% of past-due benefits cap on attorneys’ fees in 42 U.S.C. § 406(b) is a cumulative cap for work performed at both the administrative and federal court level, or whether the 25% cap applied only for successful representative before a court.  The Court ruled for the attorney plaintiff, holding that § 406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§406(a) and (b).  Thus, Attorney Culbertson is eligible to receive up to 25% of his client’s back award for representation before the court, as well fees awarded for time spent at the administrative level.

And in November, the Court accepted certiorari in Smith v. Berryhill, 139 S.Ct. 451 (U.S. 2018).  The court will answer the question of “whether the Appeals Council’s decision to reject a disability claim on the ground that the claimant’s appeal was untimely is a ‘final decision’ subject to judicial review under Section 405(g).”  Smith’s application for Supplemental Security Income (SSI) was denied by an Administrative Law Judge (ALJ).  His lawyer subsequently made an appeal to the Appeals Council.  The Appeals Council claimed the appeal never arrived, and therefore dismissed the case because it was not filed on time.


NOSSCR has filed, or will file amicus briefs in all three of these cases.