Overcoming the issue Exhaustion Doctrine on Routine Issues in Federal Court SSD Appeals After Carr v. Saul
This session will include a presentation of Professor Jon Dubin’s latest law review article: Why Carr v. Saul Should Signal the End of Common Law Issue Exhaustion in Inquisitorial Proceedings, 29 Geo. Mason L. Rev. ___ (forthcoming May, 2022); discuss the issue exhaustion doctrinal implications of the April 2021 Carr v. Saul decision and its footnote five (reserving the applicability of ALJ issue exhaustion on routine issues); identify the federal court most common routine fact patterns when SSA raises issue exhaustion, such as raising new impairments on Appeal (Anderson-8th Cir), challenging vocational evidence for the first time in federal court (Shaibi-9th Cir./Donohue 7th-Cir), and miscellaneous issue exhaustion assertions (Mills-1st Cir); and presenting approaches to defeat the issue exhaustion assertion in each context through analysis of and reliance on the rationales of Carr v. Saul and Sims v. Apfel.
Jon C. Dubin - is the Board of Governors Distinguished Service Professor of Law, Alfred Clapp Scholar, and Associate Dean for Clinical Education at Rutgers Law School. He teaches Administrative Law, Social Security Law, Poverty Law and the Civil Justice Clinic, among other courses. His clinical practice and scholarship focuses on the SSDI/SSID programs, including co-counseling the successful appeal and drafting the principal brief in a social security disability case before the U.S. Supreme Court in Sims v. Apfel, 530 U.S. 103 (2000)—a case in which the high court also twice cited Dubin’s National Equal Justice Library Award-winning law review article and adopted the article’s doctrinal label, “issue exhaustion,” and reasoning in its decision. Dubin also successfully litigated and argued Sykes v. Apfel, 228 F.3d 259 (3rd Cir. 2000) which produced SSA “Acquiescence Ruling” (SSR 01-1(3)), agreeing to change policy and apply the Sykes case to thousands of disability claimants within the Third Circuit region each year. He is the co-author, with Professor Frank Bloch, of the first hardbound, social security law school casebook and has co-authored nine editions of a popular federal court SSDI/SSID practice treatise with Carolyn Kubitschek. Finally, Dubin is also a recipient NOSSCR’s Eileen P. Sweeney Distinguished Service Award, has served on the Administrative Conference of the United States (ACUS) Social Security Disability Adjudication Project Working Group, and was elected into the National Academy of Social Insurance.
Thomas D. Sutton is a Past President and current member of the Board of Directors of the NOSSCR. Mr. Sutton has represented thousands of individual disability claimants’, and served as co-counsel in the United States Supreme Court in Sullivan v. Zebley, 493 U.S. 521 (1990), a successful nationwide class action on behalf of over 400,000 disabled children. Mr. Sutton has successfully litigated hundreds of cases in the federal courts, including precedential opinions from the United States Court of Appeals for the Third Circuit in Ramirez v. Barnhart, 372 F.3d 546 (3d Cir. 2004), Markle v. Barnhart, 324 F.3d 182 (3d Cir. 2003), and Walton v. Halter, 243 F.3d 703 (3d Cir. 2001). He has lectured extensively on disability law throughout the United States, has testified before Congressional committees, and has served as a faculty member for numerous seminars sponsored by the Pennsylvania Bar Institute, the United States District Court for the Eastern District of Pennsylvania, and several state bar associations. Mr. Sutton is a graduate of Haverford College and the University of Pennsylvania Law School.