I often field phone calls from persons who have filed for disability benefits many years ago, and want to re-visit some of the issues in those old cases. Typically, such phone calls are precipitated by a conversation that the caller had describing the long past disability case with a friend or family case, and how it “did not seem fair”. Usually the friend or family member agreed that the case was not handled properly and urged the caller to “talk with a lawyer”. Many of the typical siutations I hear about include:

  1. Social security agreed that the caller was disabled, but “did not go back far enough”. In other words, the claimant alleged an onset date, and the government found them disabled at a later date.
  2. The government denied the claim, and the caller gave up and did not appeal.

We tend to think in terms of “whats fair is fair”. We hear of persons wrongly convicted of a crime who are released when found to be innocent, and think that if a long-past disability decision was wrong, something can and should be done about it.

There is however, a judicial concept of finality. In a nutshell, this doctrine provides that once something is decided, its over. It cannot be revisited. Most precisely, it a court is presented with the same legal issue, it cannot be relitigated.

So how do wrongly convicted folks get out of jail when new DNA evidence proves them innocent? Judicial finality does not apply because there is a exception for new evidence. Now I am not a criminal law attorney, but I am not straying too far afield when I say that the new evidence has to pass a high threshold of materiality: it has to be very powerful and important evidence. DNA evidence exonerating the convicted person is that kind of powerful evidence.

Now what does this have to do with social security disability? Same issues apply, and an old closed decision can be revised with new and important evidence. But, the major difference with social security disability law is this: if the social security administration decides that an old decision cannot be reopened the decision is NOT appealable. In other words, a claimant is totally at the mercy of the administrative law judge, or other social security disability decision-maker.

So, as a practical matter, unless that past injustice of a social security disability is really, really a big injustice, you are stuck with the consequences of failing to appeal that old decision. Fair may indeed be fair, but failing to appeal a disability denial can be an unfairness that cannot be righted.

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