Summary
finding equitable tolling appropriate where the claimant was incapacitated due to a mental impairment
Summary of this case from Borrero v. ColvinOpinion
Nos. 1507, 1508, Dockets 90-6144, 90-6306.
Petition for Rehearing Submitted on August 26, 1991.
Decided October 28, 1991.
Kenneth J. Barnes, Bronx, N.Y. (Bronx Legal Services, Guilene Cherenfant, of counsel), for plaintiff-appellant.
A. George Lowe, Deputy Chief Counsel for Social Sec. Disability Litigation, Office of the Gen. Counsel, Social Sec. Div., Baltimore, Md. (Stuart M. Gerson, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Donald A. Gonya, Chief Counsel for Social Sec., Randolph W. Gaines, Deputy Chief Counsel for Social Sec., of counsel), for defendant-appellee.
Jane E. Booth, Director of Litigation, New York City (Legal Aid Soc., Civ. Appeals Law Reform Unit, Matthew Diller, of counsel), as Amicus Curiae.
The Secretary has petitioned for rehearing. He asks us to vacate our opinion which was filed on June 27, 1991 936 F.2d 755 and remand the case to him for reconsideration in light of Social Security Ruling SSR-91-5p, 56 Fed.Reg. 29,971, which was issued on July 1, 1991, four days after we filed our opinion. The new ruling permits claimants to raise mental incapacity as good cause for missing the deadline to request review of the denial of social security benefits. We have considered the petition and the Secretary's brief, the brief of the plaintiff Dolores Canales, and the amicus brief of the Legal Aid Society.
We see no need to vacate our opinion. Of course, the district court in its discretion may remand the case to the Secretary. In view of the lapse of time since the claims were first asserted, control of further proceedings by the district court assures an earlier disposition on the merits.