Widow of Veteran with Schizophrenia Wins 30 Years of Retroactive Social Security Benefits After First Circuit Reversal

Richard Frusher served in the 101st Airborne Division of the U.S. Army. In the summer of 1974, at age 33 and living in Cranston, Rhode Island, he began showing signs of severe mental illness. Within months he was fully decompensated and diagnosed with schizophrenia.

In 1975, the family applied for Social Security Disability Insurance on his behalf. The Social Security Administration denied the claim. A second application in March 1978 was denied again. Over the following decades, as Frusher's condition worsened, he eventually died in a veterans' home. His wife Cecelia continued pursuing the denied benefits.

In 2003, when Frusher would have turned 62, Cecelia applied for early retirement benefits and simultaneously reopened the disability claim, arguing that his schizophrenia had prevented him from understanding his appeal rights back in 1975 and 1978. An initial hearing produced an unfavorable decision. Cecelia then retained Marasco and Nesselbush partner Donna M. Nesselbush, who identified a path through Social Security Ruling 91-5p, which allows claimants to reopen prior denials when a mental impairment prevented timely appeal.

Nesselbush appealed through the SSA Appeals Council and then to federal district court, losing at each step. She then brought the case to the United States Court of Appeals for the First Circuit. On September 2, 2010, the First Circuit ruled that the administrative law judge's refusal to find good cause was marred by unsupported factual findings, vacated the district court's judgment for the Commissioner, and remanded the case for further proceedings, which sent the matter back for a new hearing before an SSA administrative law judge.

The third hearing took place on April 25, 2011. An independent medical expert reviewed the full record and concluded that Frusher's schizophrenia had been totally disabling since 1975. In a decision dated April 29, 2011, the administrative law judge found that the schizophrenia constituted good cause under SSR 91-5p for Frusher's failure to pursue his original appeals. The judge awarded retroactive SSDI benefits covering the period from 1975 through the date of Frusher's death. Cecelia Frusher received those past-due benefits as her husband's widow and the representative of his estate.