Social Security's Office of Inspector General (OIG) has issued an audit report on Claimant Representation at the Disability Determination Services Level. They reviewed 379 cases involving representation. Their findings were that in:
- 84, we found no evidence that the representative assisted with the claim;
- 154, the representative assisted with filing the claim, but did not assist the DDS with claim development in the disability determination; and
- 141, the representative assisted throughout the claims process
The report does not describe how it decided whether a representative had assisted with the claim or assisted DDS with claim development.
How would OIG know whether the attorney or representative had assisted the claimant with setting an appointment to file a claim or with completing claim paperwork?
Much of the time, the most important thing an attorney can do is simply to encourage the claimant to get on with it. Most claimants delay filing a claim because they keep hoping to get better. This may be appropriate for a few months but eventually it's just procrastination and the claimant needs encouragement. I don't see how OIG would know about this sort of encouragement which can be of considerable value to the claimant.
There's also the efforts that attorneys and other representatives make to prevent things from falling between the cracks at Social Security. It's not rare for a claim to be filed but go astray somewhere at Social Security. Without representation, nothing happens. Eventually, the claimant returns to Social Security some months later. The assumption is made that the problem happened because the claimant failed to complete the claim process and a new claim is taken. Sometimes it's the claimant's fault. Sometimes it's true that the claimant never completed the process but Social Security never warned the claimant that there was a problem. The process is complicated enough that it's not hard for someone who's sick to fail to do all that was expected of them even though they were trying. Sometimes the problem is wholly Social Security's fault. (Please, if you work at Social Security, don't tell me this never happens. I know better. Claims get sidetracked all the time. Sometimes they reappear months later. Sometimes they never re-emerge without external prodding.) A good attorney or representative straightens out these problems. Would OIG have been aware of this sort of work done by an attorney? I doubt it.
In terms of medical development at DDS, there's little point in the attorney or other representative duplicating DDS' effort. There's a role for the attorney or representative but in many cases, there's nothing the attorney or representative can do that helps the claimant -- and the point of representation is to help the claimant, not Social Security.
My view of representation at the initial and reconsideration level is that it usually doesn't involve that much work but the chance of getting a fee is low and the fee, if I do get one, is usually modest. It's a relatively low return for a relatively low effort. If OIG thinks that representation at the initial and reconsideration levels is so remunerative, why is it that most attorneys and representatives avoid this sort of representation?
5 comments:
In my experience (retired from DDS after 30 years), it is not worthwhile for any claimant to get an attorney at the initial level. It just costs the claimant $ if allowed (even if such fee is "modest"). If I were filing and got an initial denial, I'd sign up for representation at the recon level (which most often but not always affirms the initial denial. I wold most certainly have an attorney to go before an ALJ, but if I got turned down at OHA, I'd give up and try to find a job or survive as best I could (which is the unfortunate case for an awful lot of folks who fall through the so called safety net holes).
Since nobody will have seen every denied claim at the initial level. the best argument I can make why representation at the initial level is fruitful is because it makes sure the claimant actually completes the application process and files all forms.
Reviewing fee petitions when no past due benefits are involved, rarely do services exceed 8 hours and when they do, they are usually trumped up services from Binder where for some reason they called DDS every 3 days for months on end, but never submitted anything to DDS. Heck, I've even seen Binder submit petitions for a rep they claimant never knew the appointed. They had simply copied an old 1696 where the rep wasn't listed and insert a new one, with the claimant's and reps signatures being 3 years apart!
TLDR: Reps are still beneficial during the claim process because they make certain that the process actually gets completed (forms, etc.). There are some reps, however, that still honestly expect $1,600 in fees for 8 hours of services when the claim resulted in no past-due benefits and their monthly check is only $1,100. No legal advice, just clerical work on the reps end.
There are several situations where reps are particularly helpful at the initial claims level. Some claimants do not have the wherewithal to complete the forms correctly and gather evidence that DDS may miss. They benefit from representation.
Next, there are plenty of people with disabling impairments which are not documented well by their non-medical claim forms and existing medical records. An experienced and diligent rep can help such claimants access proper medical care, which may also document the extent of their impairments and limitations. Getting that advice at initial as opposed to after a year or two of wasting everyone's time is a big help, even if the claim is not won at initial.
I sympathize with OIG in doing that report. It's not easy to get an accurate picture and I doubt they were able to test for some important indicators. For example, when dealing with homeless or very low income clients, a sizable percentage get lost to contact despite diligent efforts by reps. On an OIG file audit of such a claim it may look like a rep did not do much, when in fact they were unable.
First, I do not charge a fee if there are no back benefits. A cost of doing business and even a source for future referrals from a satisfied client.
Second, making sure the application is actually filed, listen all relevant doctors with info and listing all impairments and conditions, not just what "I am filing for" is a valuable service alone.
Lastly, there are many instances where what is put on the application by way of onset date makes a large difference in benefits. For example, if someone stopped work two years ago due to illness, tried to go back to work after being out for over a year, lasted only one or two months and stopped, they will often allege disability as of when the last worked (as the application form suggests) with no awareness of arguing the earlier onset date and UWA for the later work. That alone, if nothing else is done, more than covers any fee charged.
@ 8:56AM I concur with everything you mentioned. I think that SSA's push toward filing online is only going to make the need for representation from initial filing on all the more important.
I've been doing this work 20 years and bring that knowledge with me when filing the application. There is little if any info on the application to help claimant's decide issues like appropriate onset date.
Just taking the time to conduct a thorough interview is just as important. I almost always come up with another treating source or condition the claimant failed to mention initially.
Like you, I don't file fee petitions for cases where there is no back pay. I tell the client at the outset, I love the cases where they get approved right away because they deserve it. I also prepare them for the fact that it is unlikely to happen in most cases.
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