Oct 9, 2014

Social Security Attorneys Are Hurting Because Social Security Claimants Are Hurting But The Disability Trust Fund May Do Better

     A company that sells "leads" to attorneys has done an interesting analysis that breaks down some of the reasons why fees paid to attorneys representing Social Security claimants have gone down so much in recent years. Here are some numbers they came up with, which point to a significant reduction in the percentage of claims approved by Administrative Law Judges (ALJs), a significant increase in the backlog of claimants awaiting a decision after an ALJ hearing and a significant decrease in the number of disability claims filed as the reasons:

Administrative Law Judge Decisions
Year% DeniedFully FavorablePartially Favorable

Administrative Law Judge Hearings Held And Decisions Issued
YearDecisionsHearings HeldHearings Held to Decisions

Volume of Disability Claims Filed
*projected at current pace

     Note that this last set of numbers has implications for the Disability Trust Fund. The current midrange projection is that the Fund will be exhausted in 2016 but that projection is based upon an assumption that the disability incidence rate would actually be increasing slightly at this time.


Anonymous said...

Their analysis has missed what I have found to be the greatest factor affecting my profitability. The geographic area in which I practice was transferred from one ODAR's jurisdiction to that of another. The ALJs at our new ODAR are very aggressive in drasticly cutting past-due benefits for claims which are awarded. The ALJs are insisting upon amended onset dates in 75-80% of all awards, usually resulting in at least a one-year loss of past-due benefits. Often, the amended onset is beyond the DLI, so instead of SSDI, the "successful"(?) claimant gets only SSI--and not even from the date of application.

In many of the stronger cases, I have wanted to reject the amended onset date to see whether the ALJ will issue a partially favorable decision which I would take to the Appeals Council and possibly to USDC or if the ALJ will simply deny the case. However, the case belong to my client, who is now destitute, having been living hand-to-mouth and possibly "couch surfing" for the nearly 3 years that his/her case has slowly percolated through the system. The financially desperate client does not wish to gamble on what the ALJ and/or AC might do--the client needs any financial scraps which might be thrown to them. Of course, my 25% is almost negligible in some cases. I hardly ever see a fee reach the $6,000 cap. It appears to be a calculated effort to force attorneys out of this type of practice--I know a number who have quit.

Anonymous said...

@ 11:10

as much as the agency has misgivings about some things some reps do, trust that it is not trying to get rid of reps. Unrepped claimants are infinitely more difficult for us in a lot of ways.

Anonymous said...

I feel your pain, 11:10. I would add that the pattern of adversely amending onset dates you observe is not unique to ALJs. We see this pattern, too, with DDS favorable decisions. We often are left scratching our heads looking at favorable DDS decisions with amended onset dates that correspond to no appreciable date or occurrence in the claim. Often, these dates appear only to serve to eliminate most or all of the claimant's back pay. After explaining the risks of appeal to my clients, most will choose to accept the change. However, in some of the more egregious cases, some clts have wanted to appeal. In every case that I can think of off the top of my head, the ALJ did award benefits back to the original onset put on the application.

Anonymous said...

For ANON 11:10, agreed. However, the agency is going to have many more unrepped claimants and your jobs will be much more infinitely difficult. A 10 - 20% drop in revenues will run many representatives out of business. And before those who have never met a payroll or run a business whine about it, that kind of decrease in bottom line simply makes the amount of time and investment the majority of representatives put into a claim essentially unprofitable. The agency should follow the law. Changing allowances due to political pressure is unconscionable. A claim that was an allowance in 2011 should be an allowance today.

Anonymous said...

What about the demographic,or pattern of the increasing denied claimants?


Is the black claimant getting a shorter end of the stick,etc?

Anonymous said...

2:01. This is 11:10 again. I, also, have noticed that NC DDS NEVER allows a claim without cutting off at least 1 year of benefits. I used to appeal all of those, and I had never lost one--the ALJs often laughed at the result from DDS. Now, however, with a significant number of the ALJs being "Astrue ALJs" who came from within SSA and the fact that the AC has become almost worthless, I now fear taking these cases up to ODAR and facing these same benefit-cutting ALJs. In some recent AC appeals, there have been some pretty egregious errors, but the AC is affirming the ALJs, no matter what error is made. All of the comments people have made are relevant. However, the local field office where I practice is more likely to tell people NOT to hire an attorney and tells them that an attorney will just drag out the case to get a bigger fee (too many clients have reported this for it not to be valid). If ODAR doesn't want to see unrepresented claimants, being fair on AODs is the way to ensure it won't happen.

Anonymous said...

Most, if not all, SS attorneys are lazy cheats who should be disbarred for defrauding the SSA with phony evidence from phony doctors.

Anonymous said...

7:12 - apparently a troll has lost its bridge.

Anonymous said...

It's interesting how so many of you reps see the increased amended onsets as some sort of conspiracy. Do you have any data showing there actually has been a statistically significant number of increased AAODs or requests to amend? I know it's only anecdotal, but in my experience I don't have the impression I am seeing significantly more than I did before W.Va., etc.

Also, if there is an increase, could it possibly be ALJs who maybe would have paid as of the AOD before W.Va., but don't see enough MER, etc. to feel comfortable paying all the way back to the AOD? Generally speaking, unless the AOD coincides with a very acute event (spinal surgery, significant injury, etc.), it is usually the case that the earliest part of the relevant period is the thinnest in terms of medical and other evidence. I know we can get back to an AOD using new MER and lay evidence, etc., but a lot of ALJs are leery when there isn't much treatment or other medical evidence near the AOD.

I'd be moved by data, but as of now I am not sure your decrease in dollars isn't just the result of other things. For example--a trend I've noticed over the past year or two? AODs much closer to the present than when I first started a few years back. When I first started (while Astrue was commish), AODs were much more often two, three, or more years before the time of the hearing/decision. I have been seeing many late 2012/2013 AODs (not amended, mind you) since the start of last fiscal year.

So maybe the reps can answer some questions that will help get us a clearer picture here. If ALJs are increasingly paying cases where claimant's agree to amend, I'd expect you all to be able to point to a huge percentage of cases where you were asked to amend, didn't, and received an unfavorable decision (and not a later onset with the proposed AAOD). Or I'd expect to see an increase in partially favorables. Or I'd expect to see an increase in the number of amended onset FFs. If you can't point to at least one of those, I'm pretty sure that would mean the phenomenon you allege isn't really happening.

Anonymous said...

No, I don't think it's a grand conspiracy to cheat claimants/attorneys by amending onset dates. However, I believe the political pressures felt by ALJs is very real. ALJs appear to be terrified of having their favorable decisions reviewed.

To answer your questions above, attorneys aren't going to specifically track all the data you question. We barely have enough time to run our practices and track the numbers that really matter, like revenue and new client acquisition. But that doesn't diminish the anecdotal evidence we're all reporting.

Take the rather common example of a 50+ yr old claimant who leaves years of labor due to back pain. Of course, he loses his med insurance as a result of leaving work. He eventually obtains some Medicaid and visits a clinic or has a SSA-ordered consultative exam. Maybe, at some point, he'll get an x-ray showing degenerative changes. The claimant will testify that he left work because of his back pain. The clinic records or CE will note a history of back pain with no specific injury. Many ALJs used to safely assume that the back condition existed as claimant testified to prior to the clinic note or CE and pay the case as of the listed onset date. Now, many of these same ALJs won't go back to the AOD and instead only pay (if awarded at all) the case as of that clinic note or CE, thus eliminating months or years of back pay. Our argument that the back condition warranting disability didn't just magically appear the morning of the CE falls on deaf ears.

Anonymous said...

@ 9:57.

your hypothetical claimant should never be paid as of his AOD.


so he stopped working b/c of his pain and then lost his health insurance. well. if he truly had an existing MDI wouldn't you think he would have multiple visits to the dr. BEFORE he stopped working, while he still had insurance? people who have impairments plus insurance go to the dr.

but in the magical world of SSA, people never goto the dr while they are working. then get laid off/fired. can't find a new job for a while. and then suddenly have several "impairments" that date back to the last day that they worked. even though they have NO medical records for years after their AOD.

nowadays, a claimant should NEVER be paid as of his AOD according to your hypo. and never should have been paid (though often was) in the pre WV days

Anonymous said...

1:47: your analysis would perhaps apply to a Listing argument where very specific criteria must be met and identified. However, in a Grid Rule argument, where we only need to prove that the claimant can't perform PRW and can only perform sed work, for instance, why would a specific treatment note date be necessary? Did that hypo worker above not have the back pain that limited him to sed work the day before the CE? Taking the reduction in attorney fees out of the equation, most claimants finally get to the hearings in severe debt. They're counting on back money to pay bills (often past due rent or utilities). Unfairly amending onset dates is not only incorrect, but mean.

Anonymous said...

@ 215

sorry bro. if the 1st time the claimant is getting any type of physical exam is at the CE, with that's as classic a step 2 denial until the date of the CE as I've ever seen. no treatment = no MDI/nonsevere.

Anonymous said...

@1:47 PM, October 10, 2014

" get laid off/fired. can't find a new job"

Amazing,the same decisional thinking used by a p.o.s ALJ that denied me. It's as if he centered his decision on it. I eventually was found to have a disability.

Anonymous said...

ANON at 817 is wrong, adjudicators have increased unfavorable onsets, it is happening. It took a while for the 20 percent decreasing allowances to emerge statistically, and unfavorable onset documentation is not far behind. And Anon at 215 “no treatment = no MDI/nonsevere” has no real concept of onset machinations.
CFR, SSR 83-20 and the POMs all speak of onset in the same general manner, of course, there are many special situations, but the focus is the date the claimant says she became disabled.
Here is the basic agency language and nothing had really changed in 30 years – until now….
The onset date of disability BEGINS with the individual's allegation, the work history, and the medical evidence. These factors evaluated together to arrive at the onset date. The day of work stoppage is significant in determining onset only if it is consistent with the severity of the condition(s) shown by the medical evidence.
That is, nothing should have changed. But it has. In the last year, I have seen the DDS and ALJs re focus and revise the law, usually resulting in a loss of benefits that are correctly due the claimant. I base this on hundreds of case in the last 12 months, a change on a level I did not see in the previous 20 years. And I consider this at least a breach of ethics by the outlier ALJs. Many, not all Examiners are just moving cases.
Fact is, many SSA adjudicators simply feel they can change the way the regulations were written (as they did in the Regan years with CDI/CDR). And, with a joke of an appeals council in place, they have. One hopes a day of reckoning occurs like it did after Regan, but that will probably be two years out when a new president and congress are forced to get on with reconciliation.

Anonymous said...

411 has no knowledge of how the disability process works

1. claimant has the burden of proving he's disabled at all steps of the sequential evaluation except step 5

2. see point 1.


if you have no medical treatment showing functional limitations which render you disabled, you simply are...not..disabled. you can scream from the top of your lungs that the phyisical exam findings of 2014 date back to 2010, but you're really wasting your time unless you have treatment notes to support this

the only difference today is that lazy ALJs who 3-4 years ago would have just paid from the AOD, are getting their cases kicked back because the AOD is not supportable by the evidence.

Anonymous said...

5:05 -- SSR 83-20 suggests otherwise:

"In some cases, it may be possible, based on the medical evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the administrative law judge (ALJ) should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made.

If reasonable inferences about the progression of the impairment cannot be made on the basis of the evidence in file and additional relevant medical evidence is not available, it may be necessary to explore other sources of documentation. Information may be obtained from family members, friends, and former employers to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual's condition. However, before contacting these people the claimant's permission must be obtained. The impact of lay evidence on the decision of onset will be limited to the degree it is not contrary to the medical evidence of record. (In mental impairment cases, see SSR 83-15, PPS-96, Titles II and XVI, Evaluation of Chronic Mental Impairments.)"

I think the debate going on these comments is pretty useful. We could all become better reps, ALJs, attorney advisors if we had the opportunity to frankly debate the different understanding of the regs we have developed over the years with humility.

Anonymous said...

@ 11:10 - Very much so.

6:56 PM, October 10, 2014
Good call.

We've seen increasing amended AOD rates. Don't have stats, and from our single office, wouldn't prove anything, we (reps) know it's happening.

Anonymous said...

To cite the title of Judge Judy's book, "Don't pee on my leg and tell me it's raining."

It's time-consuming and difficult for a small law firm to do a statistical analysis on the rate of amended onset dates, but those of us who've been practicing long periods (25 years, here), are aware of trends that develop. Until the last few years, I'd have an amended onset date perhaps 10-15% of the time--not often enough to be of real concern--the ALJs were straight about it and could state good evidentiary reasons for it. Most would be because, to avoid complete desititution, the Claimant would collect unemployment compensation. Now, the cases in which onset dates are NOT amended are in the minority--75-80% of my cases ALWAYs have amended onset dates. The approval rates by many ALJs are very misleading--some of the ALJs will ALWAYS move up the onset date, so their statistics show a false fully favorable decision rate--when they don't deny the case entirely.

John Mclaughlin said...

It definitely is unfortunate to hear that some social security attorneys are being hit hard. Something that is interesting is that with the baby boomers retiring it would seem like they would be busier than usual. I personally hope that there will be some further adjustments to ensure that someone is able to make the most out of their social security benefits. Thank you for sharing. http://www.ballferraripc.com/Personal_Injury_Claims_Yonkers_NY.html

John Mclaughlin said...

It definitely is unfortunate to hear that some social security attorneys are being hit hard. Something that is interesting is that with the baby boomers retiring it would seem like they would be busier than usual. I personally hope that there will be some further adjustments to ensure that someone is able to make the most out of their social security benefits. Thank you for sharing. http://www.ballferraripc.com/Personal_Injury_Claims_Yonkers_NY.html