finding that application had been “de facto” reopened where ALJ considered and relied extensively on prior evidence of disability and holding that claimant was properly entitled to benefits going back to earlier application
How later courts described this case
- finding that application had been “de facto” reopened where ALJ considered and relied extensively on prior evidence of disability and holding that claimant was properly entitled to benefits going back to earlier application
- noting that § 406(b) is “a statutory interference with the attorney client contractual relationship which would otherwise be determined by the marketplace for legal services.”
- observing in dictum that Delaware Valley II “severely limits the occasions in which contingency enhancement is appropriate in fee-shifting cases”
- reopening found where “the administrative process does not address an earlier decision, but instead reviews the entire record in the new proceeding and reaches a decision on the merits.”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789 (2002)
834 F.2d 313, 317 (3d Cir. 1987), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789
The opinion
ALDISERT, Circuit Judge,
concurring.
I join in the majority opinion completely, but am constrained to add a caveat. As the author of that portion of the opinion in Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 762 F.2d 272, 281-82 (3d Cir.1985), approving the use of the contingency factor that was reversed in *326 Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, — U.S.—, 107 S.Ct. 3078 , 97 L.Ed.2d 585 (1987), I am a little uneasy about permitting a contingency enhancement here. I know the adage “once burned, twice shy,” but shy I am not and twice I may be burned.