William R. Morton has done a report for the Congressional Research Service (CRS) on "An Overview of Proposals to Reduce the Growth in SSDI [Social Security Disability Insurance] Rolls." The report is impressively footnoted but to say it breaks no new ground would be an understatement. I keep thinking I must have read this before even though it's brand new.
Morton accepts the premise that the Social Security Disability Reform Act of 1984 relaxed the criteria for approval based upon mental illness or musculoskeletal ailments even though a simple reading of that Act shows that it did nothing of the sort. Apparently, Morton never bothered with simple reading the Act.
Morton also has a poor understanding of the proposals that have been on the table since forever. For instance, Morton examines the possibility of making Social Security hearings before Administrative Law Judges adversarial. He thinks an experiment with adversarial hearings might be a good idea. Morton is aware that an experiment was tried previously but he is clearly unaware of the results -- a lot of expense but no effect upon the rate at which disability claims were approved -- a point made recently by former Commissioner Astrue. Why didn't Morton ask someone at Social Security what happened when this was tried previously? Morton is also unaware that since the time of that prior experiment the Equal Access to Justice Act (EAJA) has been passed. Because of EAJA, if Social Security went to adversarial hearings, the agency would end up paying the attorney fees for most claimants who got approved. In my view, bring on the adversarial hearings. They wouldn't hurt my clients but they would sure help my bottom line!
The biggest thing reassuring me about the future of the Social Security disability programs is the unsophisticated nature of its opposition. There's a good chance that even though Republicans want to make it harder to get Social Security disability benefits, unsophisticated reports like this one will cause them to stumble into unworkable proposals or even into proposals that are contrary to their goals. I have yet to read a study or proposal that worries me. They're all stale rehashings of ideas which have already failed or ideas which haven't been tried because they're so obviously unworkable.
When you cite Duggan and Autor as sources for anything about Social Security Disability, this report is the kind of nonsense you get
ReplyDeleteIf Congress made hearing adversarial I guarantee they would amend the EAJA to exempt collection of attorney's fees based on the time before the Agency, so be careful what you ask for....
ReplyDeleteI wouldn't mind trying adversarial hearings again. That first experiment happened way before my time, and apparently was implemented in such a way as to make its failure all but guaranteed.
ReplyDeleteI just think about how much more I'd enjoy my job if I could spend some of my time doing hearings (a throwback to my pre-agency litigation days) to take a break from the writing.
Plus, I find it hard to imagine the agency would continue to allow non-attorney reps since adversarial proceedings would surely make it the practice of law (one would think, at least). I think everyone save for those non-attorney reps can agree that would be a good thing.
"Because of EAJA, if Social Security went to adversarial hearings, the agency would end up paying the attorney fees for most claimants who got approved. In my view, bring on the adversarial hearings. They wouldn't hurt my clients but they would sure help my bottom line!"
ReplyDeleteActually, it would hurt your bottom line. You would not be allowed to collect both the $6000 fee and EAJA fees. And EAJA fees at the hearing level would be low. Even assuming an hourly rate of $200, you would be lucky to get more than $1000-$1500 because so little work/time is actually required/involved in preparing for a hearing. You would never have a case that required the time commitment necessary to come even close to justifying the current maximum possible fee of $6000 or even the pre-Astrue fee of $4000.
So, please go ahead and accept EAJA fees instead of the standard fee agreement. That would put more back benefits in the hands of your disabled clients, where it belongs.
"even assuming an hourly rate of $200"
ReplyDeleteDo you think that's high? As a second year associate at a small firm I was billed out at $240.
For a Social Security case, $200 an hour is high. If you read any court cases on EAJA fees, you will see the standard hourly rate utilized is around $125 and attorneys often argue that with inflation and higher costs, they should receive an hourly rate of $175-$200 (which they often receive).
ReplyDeleteBut even if you assumed an hourly fee of $250 or $300 or even $400 as reasonable, the amount of time required to prepare for a disability hearing before an ALJ would not approach the hours required to justify a $6000 fee based on an hourly rate; of course, disability cases are contigency fee cases -- you only get paid if you win.
If winning was difficult, a $6000 maximum fee might make sense to offset the cases the attorney takes and loses; but since 50% or more of cases are paid at the hearing level, the attorney is going to make a decent profit. If you are in the right areas, such as Brooklyn (the ODAR there pays 80%) or the Boston Region (high pay rate by both DDS and ODAR), you can do really well if you have sufficient volume.
There is no budget to add a "SSA Defender", so I do not see that happening. Again the report hits on a common refrain of raising the GRID at least two years, but even refutes the effectiveness for such a move. Since it costs nothing and has no real impact, I see that as one of the changes.
ReplyDeleteI think it is interesting that the report makes a point of making the requirments more difficult. Again, this costs little to nothing and for the disabled individual will not make a difference, so I see this happening.
New jobs list, new DSM coming, things could change, with little impact, but something to point at and say they tried.