Finally Some New Numbers On Attorney Fee Payments

     Social Security used to post numbers each month showing the amount of fees paid by claimants for representation before the agency but that stopped at the end of 2019. I never gave up. I kept going back to the website expecting that the agency would eventually update the numbers. My patience has been rewarded. They have finally updated the numbers all the way through last month.

     For 2019, 390,809 fees were paid for a total of $1,214,557,861. The average fee paid per case was $3,107.80. 

     For 2020, 360,493 fees were paid, down 8% from 2019. The total fees paid were $1,081,523,523 down 11% from 2019. The average fee paid in 2020 was $3,000.12, down 3% from 2019.

     For the first quarter of 2021, 77,754 fees were  paid with the monthly average number down 14% from 2020. The total fees paid for the first quarter were $262,694,679 with the monthly average down 10% from 2020. The average fee per case was $3,121.31, up 4% from the 2020 average. However, I would caution about drawing too many conclusions when comparing the first quarter of 2021 with 2020. There are many fluctuations in payments from quarter to quarter and quarters aren't the same length.

     In any case, it's no exaggeration to say that those of us representing claimants are hurting. Our costs have gone up with inflation but our average fee per case is either down or stagnate while our total fees are down considerably.

     Whenever I post anything about attorney fees I always get sneering responses that essentially go "Well, why don't you just give up representing Social Security claimants?" The answer is that some attorneys have already given up representing Social Security claimants and many more are wondering what they should do. There's no doubt that representing workers compensation or personal injury clients pays better than Social Security. Those of us who specialize in representing Social Security clients have invested a lot of time and money developing our practices and are reluctant to give them up but that won't last forever. The end of the pandemic will help but only so much. This field of practice was in decline before the pandemic. I've already heard a report that it's hard to find a Social Security attorney in the state of Kansas. Expect that to spread without an increase in the fee cap.

     By the way, I wonder why these numbers were finally updated now.

EM On Covid-19

      Social Security has issued an Emergency Message on the evaluation of Covid-19 disability claims. It's long but don't expect anything that's really new. I don't fault them; it's too early. About the only thing that I see that's even halfway new is a statement that individuals who have had extended stays in intensive care usually require an extended period of rehabilitation before they can return to work. That seems obvious but I don't recall ever seeing that from Social Security and I can recall non-Covid cases where Social Security failed to take this into consideration.

Covid Long Haulers And Social Security Disability

     From an article in U.S. News & World Report concerning Covid-19 long haulers and disability benefits:

... Last June, Democratic U.S. Reps. John Larson of Connecticut – who chairs the House Ways and Means Social Security Subcommittee – and Danny Davis of Illinois, who chairs the Worker & Family Support Subcommittee, called on the Social Security Administration to collaborate with the National Academies of Sciences, Engineering, and Medicine on how to evaluate the long-term impact of COVID-19 on people's ability to work, which SSA agreed to do.

"While I'm encouraged that SSA is moving forward with this examination of what needs to be done to support long haulers, I do not have confidence in Andrew Saul leading the agency," Larson said in an emailed statement to U.S. News, referencing the Social Security Administration commissioner tapped by former President Donald Trump. "I will continue to push SSA and monitor their work to make sure we are supporting those most affected by COVID-19 who may need Social Security Disability." ...

Social Security Halts No-Match Letters

     A press release:

Today, House Ways and Means Committee Chairman Richard E. Neal (D-MA), Social Security Subcommittee Chairman John B. Larson (D-CT), and Oversight Subcommittee Chairman Bill Pascrell, Jr. (D-NJ) released the following statement regarding Social Security Administration (SSA)’s decision to halt sending “no-match” letters, also known as Educational Correspondence (EDCOR) notices:

“We welcome SSA’s announcement that it will stop the harmful practice of sending no-match letters to employers with certain discrepancies in their W-2 records. Two years ago, we strongly condemned SSA’s decision to send these letters out in the first place because they disproportionately imperil immigrants and threaten workers’ privacy. No-match letters have been shown to be wholly ineffective in correcting wage records and are not a cost-effective use of SSA’s limited resources. Today, we reiterate that the agency is prohibited by law from using its funds for any purpose other than administering Social Security, such as immigration enforcement. While we are glad to see SSA finally do the right thing and stop sending these letters, it is unfortunate that SSA Commissioner Andrew Saul chose to send these harmful letters for two years, inflicting significant harm on many affected workers.”

In June 2019, Chairmen Neal and Larson, along with former Oversight Subcommittee Chairman, the late John Lewis (D-GA), sent a letter to Commissioner Saul opposing SSA’s decision to restart sending no-match letters. Specifically, the members cited their concerns that the letters may lead to the firing of U.S. citizens and work-authorized immigrants, that they may result in the unauthorized sharing of tax data, and that they were a poor use of SSA’s scarce resources. 

      You will notice the contrast drawn, implicitly, to the pious statements from Social Security that they were forbidden to help the IRS with stimulus checks until the IRS ponied up money for the costs of producing the lists of those eligible because the funds appropriated for Social Security could only be used for administering Social Security and not helping with stimulus payments. However, when the Trump Administration asked for Social Security's help with immigration enforcement, Social Security apparently saw no such obstacle.

     It's past time for the House Ways and Means Committee, the whole Committee, to hold an oversight hearing and force Andrew Saul to answer questions under oath.

Saul Vows To Hang On

     From the Baltimore Sun:

Three months after Donald Trump left office, unions and congressional Democrats say the man he left in charge of the vast Social Security system is making it harder for millions of Americans to get disability benefits and is undermining federal workers’ rights.

Andrew Saul, 74, one of the few remaining holdovers from the Republican president’s administration, told The Baltimore Sun through a spokesman that he intends to lead the Baltimore County-based Social Security Administration until his term ends in January 2025. ...

Saul’s defenders say he has been the subject of unwarranted criticism that is politically motivated.

“I just don’t see any case” for firing Saul for neglect or malfeasance, said Andrew Biggs, a resident scholar at the conservative American Enterprise Institute. ...

     You may recall that when Andrew Biggs was a Social Security employee he thought it was OK for him to go around the country with then President George W. Bush campaigning for the partial privatization of Social Security.

Criticism For Social Security's Reliance On Accurint

      From Mismatched and Mistaken: How The Use Of An Inaccurate Private Database Results In SSI Recipients Unjustly Losing Benefits by Sarah Mancini, Kate Lang and Chi Chi Wu of the National Consumer Law Center:

... In fiscal year 2018, the Social Security Administration (SSA) began using a data set from LexisNexis (Lexis) called Accurint for Government on a widespread basis to determine whether recipients of needs-based government assistance had unreported real property that could dis-qualify them from the receipt of such benefits.

Since the advent of SSA’s use of the Accurint for Government (Accurint) product, advocates representing individuals receiving Supplemental Security Income (SSI) benefits have reported significant problems with clients being falsely accused of owning real property. People who rely on SSI to survive have received letters from SSA suspending their benefits or assessing an overpayment based on supposedly owning real property that puts them over the resource limit. Often the suspension letter does not even identify the alleged real property at issue. Too often, the data relied upon is inaccurate. Vulnerable SSI recipients, who are by definition either disabled or elderly and extremely low income, must attempt to prove a negative—prove that they do not own the real property—to the satisfaction of the employees in their local SSA office. And even worse, they may lose their benefits or face an offset for alleged overpayment during that appeal process, depending on the timing of their appeal.

Lexis appears to be attempting to evade the Fair Credit Reporting Act (FCRA), by inserting a disclaimer at the bottom of its promotional website stating, “Accurint for Government is not a consumer report (as defined in the Fair Credit Reporting Act) and may not be used for any purpose permitted by the FCRA.” This type of disclaimer is part of a wave of businesses attempting to skirt coverage of the FCRA by disclaiming any intent to provide a “consumer report.” By claiming that Accurint for Government is not a consumer report, Lexis is attempting to dodge the FCRA’s requirements to adhere to certain standards of accuracy, and SSA is trying to avoid requirements to provide notices to consumers before taking any adverse action based on information contained in the report. If the FCRA applies, consumers would have the right to dispute inaccurate information contained in the report and have it investigated and corrected by LexisNexis.

 SSA claims that it does not use the data from LexisNexis to deny or suspend benefits without independent verification, but that the data is used only to establish a lead. SSA employees are supposed to conduct an investigation to determine whether the SSI recipient owns the real property. Reports from advocates around the country refute this assertion. ...

 Many of the examples shared with National Consumer Law Center and Justice in Aging involved false real property matches. ... A Bengali SSI recipient in New York had her benefits suspended and an  $11,000 overpayment assessed against her based on real property in Florida that was in fact owned by her sister, with a similar name. ... 

Other examples involved properties that were connected with the recipient at some point, but should not have disqualified the recipient because they were transferred away many years ago or were worth less than the allowed amount ...

Accurint is returning a “match” based on a first and last name only. ... 

     I can't say that I've seen Accurint problems but I have certainly seen problems over the years with inaccurate valuations of real estate. Here are a couple of examples of Social Security going off the deep end with theoretical values of real estate:

• "Heir property" that has no real value. For example, the claimant owns a 1/8 undivided interest in a house. The only way to obtain value out of the house would be to force what is called a partition sale but the claimant lacks funds to hire a lawyer to force a partition sale. This sort of situation usually ends up with the house being sold for unpaid property taxes.
  
• Unsaleable life or remainder interest. For example, the claimant has been willed a life interest in a rundown house that is uninhabitable. In theory, the claimant could sell her life interest but who wants to buy a life interest in an uninhabitable house with the length of ownership determined by the length of someone else's life?

      Yes, I know how to handle these cases. Tell the claimant to list their interest in the property for sale and the property disappears as far as Social Security is concerned but that requires knowledge that the average claimant lacks.

Why I'm Concerned About How Social Security Spends Increased Appropriations

      In an earlier post I mentioned my fear that Andrew Saul would attempt to spend the increased appropriations likely to come Social Security's way next year on contractors rather than on increasing the federal workforce in order to reduce backlogs. Let me go through two episodes from Social Security history that will explain my concern.

     When Jo Anne Barnhart became Commissioner of Social Security in November 2001 Social Security was suffering from bad backlogs at the hearing level which were a matter of great Congressional concern. The obvious thing to do about the backlogs would have been to hire additional employees. However, Barnhart, a highly skilled snake oil salesperson, put forward two plans to avoid doing anything of the sort. First, she wanted to streamline the process. If you were around for that fiasco, you'll remember that Barnhard delayed and delayed in producing a plan to streamline the process. She only came up with one as her term as Commissioner was coming to an end. Once people saw her plan, just about everyone's response was "Are you kidding me? In what way is this any better?" She made sure that none of her plan was to be implemented until after she left office. Once she was gone, her plan was quickly abandoned as unworkable. Second, Barnhart, knowing that Congress wanted to spend money on solving the backlog, proposed spending huge sums of money making a switch from paper files for disability claims to electronic files. Doing this wasn't a bad thing. However, there has to be some kind of balance. In Barnhart's case, there was no balance. She lavished money on contractors developing an electronic file system while refusing to hire additional employees to actually get the work done in the meantime. The result was that backlogs soared to previously unimaginable levels. It was taking about a year to get a hearing when Barnhart took office, which was already way too long. By the time she left office it was up to insane levels -- about two years on average and worse in some areas of the country! Even after the electronic files came into effect, there was never any proof that they improved productivity, even though I'm sure that Social Security would have loudly trumpeted that proof had it existed.

     At least, Barnhart's spending on electronic files had long term benefit even if done in a way that caused disaster for six or seven years. Michael Astrue was responsible for a plan that spent a lot of money on contractors but which produced little if any long term benefit for Social Security. The Social Security Administration is heavily dependent on computers. By the time Astrue took office, Social Security's National Computer Center building, where the heavy duty computing was done, was antiquated. Social Security also lacked any offsite backup in case of disaster. Astrue proposed and got Congress to fund not one but two hugely expensive computer centers, with the second one near me, somewhere near Durham (the address is apparently a secret, not that I have any interest in visiting it), as a backup. These may seem like necessary expenses but have you heard of cloud computing? By the time Social Security was constructing these big, expensive computer centers (around a billion dollars if I remember correctly), other government agencies were rapidly dumping their computers centers in favor of cloud computing. Don't take my word for it that Social Security's data centers were unnecessary. The guy who was in charge of building the National Computer Center became a whistleblower because he felt the project was oversold and wasteful. Another guy that Social Security hired to develop a computing strategy vision for the agency was fired because he kept saying Social Security was wasting money on the computer centers.

     It's not that I think that Barnhart wanted to create a disaster or that Astrue wanted to waste money. It's that I think they and other Republicans have two simple, unshakeable convictions:

• Federal employees = Bad
• Federal contractors = Good

     My opinion is that while federal contractors have their place, federal employees are the ones who actually get the work done. To cope with backlogs, we first need an adequate workforce at Social Security. We should spend money on federal contractors to the extent they help federal employees get the work done. Don't put the cart before the horse by insisting that additional funding has to be spent on contractors rather than on workforce.

     I fear that with additional appropriations coming Andrew Saul will be very receptive to federal contractors trying to sell him on grand, expensive schemes and very unreceptive to any plans coming up through the bureaucracy for increasing Social Security's workforce. 

     You may not have seen the actual appropriations language the Congress uses when it gives money for Social Security's operations but I have. The legislative language typically imposes few limits or restrictions on how Social Security Commissioners spend the agency's operating funds. I don't trust Andrew Saul. There's no reason Democrats in Congress should trust Andrew Saul. The next appropriations bill should force Saul to use additional funding to hire an adequate workforce. Saul should be prevented from making significant new commitments for contractors without specific outside approval.

Altmeyer Building Renovations Completed

 

From left to right, before during and after renovations

     From the General Services Administration (GSA), which handles a lot of the federal government's housekeeping duties, including handling federal properties:

... An example of optimization is the recently completed modernization project at the Social Security Administration’s (SSA) Arthur J. Altmeyer Building in Woodlawn, Maryland. The Altmeyer Building serves as SSA’s main facility on their headquarters campus, housing the SSA Commissioner, SSA executives and support staff.

In 2013, GSA and SSA completed a master plan that identified the Altmeyer Building as their highest priority to optimizing the headquarters campus. Constructed in 1959, the 181,662 square foot facility includes office and meeting space, and a first floor auditorium. With no major renovations in 60 years, Altmeyer was functionally and technologically obsolete, with original building systems past their expected life and costly to maintain.

SSA and GSA collaborated on a full building modernization, using Altmeyer’s existing structure to save taxpayers nearly $13 million. Demolition and asbestos abatement began in summer 2018. GSA renovated all exterior cladding and interior finishes, and modernized the auditorium. New elevators and building systems were installed including mechanical, electrical, plumbing, and fire alarms.

The modernization project improved space utilization, nearly doubling building occupancy to approximately 800 SSA employees. ...

White House To Propose 9.7% Appropriations Increase For SSA

      From an attachment to a letter from the Office of Management and Budget to the Chair of the Senate Appropriations Committee:

The Social Security Administration (SSA) is responsible for providing essential benefits to retirees, survivors, individuals with disabilities, and elderly Americans with limited income and resources. The 2022 discretionary request would improve the timely processing of disability claims, expand outreach to vulnerable populations, ensure that SSA makes the correct payments to those who qualify, and modernize information technology to increase the accessibility of benefits for seniors and people with disabilities. 

The President’s 2022 discretionary request includes $14.2 billion for SSA, a $1.3 billion or 9.7-percent increase from the 2021 enacted level. This includes appropriations for program integrity activities. It: 

• Strengthens SSA Services. Each year, SSA processes over six million retirement, survivors, and Medicare claims as well as more than two million disability and Supplemental Security Income (SSI) claims. The discretionary request provides $895 million in additional funding to provide better service at SSA’s field offices, State disability determination services, and teleservice centers for the retirees, individuals with disabilities, and their families who rely on the agency. The request would address operational challenges due to the COVID-19 pandemic by increasing staff to process additional disability claims, to reduce the processing time for disability claims, and to answer calls from those seeking assistance. 
• Increases Outreach to Vulnerable Populations. The discretionary request invests an additional $75 million in outreach to ensure that SSI benefits reach the most vulnerable eligible individuals, including homeless individuals, children with disabilities, and those with mental and intellectual disabilities. As part of this work, the request would invest in efforts that simplify and expand access to the program. These efforts include partnering with community-based organizations that work with vulnerable populations and delivering targeted mailers to potential SSI claimants. 
• Promotes Program Integrity. The discretionary request includes $1.9 billion for dedicated program integrity activities, including a $283 million increase above the 2021enacted level. This amount would ensure responsible spending of Social Security funds, including by funding work to ensure SSA is providing the correct benefit amounts only to those who qualify. These funds also support actions to investigate and help prosecute fraud. 
• Improves Customer Service. The discretionary request fully supports SSA’s modernization plans to maintain and improve its information technology systems, which would reduce customer wait times, improve accessibility and make more services available online, and improve the efficiency of SSA’s operations.

     I'll talk about this more later but I'm concerned about how the current leadership at Social Security will choose to spend additional money. There's a history of Republicans using increased Social Security appropriations on contractors, especially on long term contracts that tie up agency funds for many years into the future, thereby avoiding hiring additional employees to get the work done. There needs to be a balance but it was clear in the past that Republicans were not trying to balance; their fixed pole was keeping the workforce down.

Remembering Field Reps

      Tom Margenau remembers the old days when Social Security had field representatives who, like actually, went outside their offices, to the field, to help people file claims and otherwise deal with the agency.

     The lousy service we have come to expect from Social Security isn’t inevitable. It’s based upon decisions made over many years by people who are indifferent to the level of service the agency provides, if not hostile to good service.  We deserve better.