When Social Security issues a final administrative decision denying disability benefits, a claimant may bring a civil action in United States District Court to appeal from the decision. If the claimant prevails in federal court and the court determines that Social Security's position wasn't "substantially justified" the court can order the Social Security Administration to pay attorney fees under the Equal Access to Justice Act (EAJA). As you can see below, Social Security's EAJA payments have been escalating rapidly in recent years.
| Fiscal Year | Total Payments |
| 2010 | $19,743,189.12 |
| 2011 | $21,668,646.47 |
| 2012 | $24,666,171.13 |
| 2013 | $27,720,951.87 |
| 2014 | $31,637,462.36 |
| 2015 | $38,132,381.48 |
| 2016 | $40,045,962.42 |
I think there are at least three factors causing this. Social Security's Administrative Law Judges are turning down more claimants than in the past. Social Security is more willing to defend weak denial decisions than in the past. The courts became less conservative as a result of President Obama's appointments.
I think it may have to do with the percentage of repped claimants. In an office with 12,000 cases, we only have around 2,500 unrepped. The higher the percentage of repped cases, the higher the percentage of appealed cases to the District Court??
ReplyDelete@9:17
ReplyDeleteI would guess that representation is more likely to discourage an appeal to the courts than encourage it, as representatives should be (and generally are) mindful of disturbing caselaw, whereas claimants might not consider the harm they could do to other claimants.
Unrepped claimant's appeal to USDC less than repped and less frequently obtain EAJA Awards. So its not the unrepped causing the upswing. In my opinion, the increase has to do with poor decision writing and the lack of review by the ALJ prior to issuance of the decision. I think the more conservative nature of alot of the newer ALJS in the past several years leads to more decisions being appealed as well. Its one thing to deny a case based on the evidence, its a different matter when the ALJ takes the position that they are more knowledgeable than all of the medical professionals who offered opinions in the record. I routinely see decisions these days where the ALJ rejects all opinions in the record and arrives at an RFC based on their lay opinion of the medical evidence. I can't say that I saw many of these types of decisions 10 years ago.
ReplyDeleteI think another factor at play is that reps need to find another revenue stream since ODAR approval rates have declined. As a result, they are more willing than in previous years to take a case to USDC.
@11:02 well done.
ReplyDeleteI think another major factor is the fact the AC's remand/reversal rate has substantially declined in the past 6 or 7 years. Lot's more rubber stamping of the ALJ decision. I think the way the AC choses to grant request for review is by drawing SSN's out of a fishbowl. The first 10 numbers they draw, they grant; the next 90 they pick out get shredded.
ReplyDelete12:23: 10 out of a 100 by the AC? Try 3 out of 100!
ReplyDelete@12:59, I should also mention, they sit on said fishbowl for 2 to 2 1/2 years first. Waiting on the AC is like real life purgatory. Last I checked, they reverse 1-2%, but remand 10%.
ReplyDeleteIt would be interesting for Charles to try to put together a list of the percentage of AC remands/reversals (in percentages) by year. I would be willing to bet the decreasing AC remand rates correspond directly to the EAJA fees. MY USDC remanded 44% of Social Security cases brought before it last year!
Also, the hourly rates for reps has increased, which increases EAJA.
ReplyDeleteAnd with longer files (in part because of longer wait times...more medical records generated in 2 years than in 1 year) it takes longer to write a USDC brief, so courts grant bigger EAJA awards.
It would be interesting to see by how much the number of cases in which EAJA fees were granted has increased, and how much the average EAJA fee per case has increased.
@3:57pm. I'd say that the increase in the EAJA rate in the past 6 years has been about 10% an hour at best. This clearly plays little role in the over 100% increase in payments. Likewise, file size probably only plays a small role. If we had a stat as to the total # of EAJA awards by year, I'm guessing we would see a near 100% increase in the total number of awards.
ReplyDeleteKeep in mind that the Ratliff decision came out in 2010 which should have acted as a deterrent to filing cases in some situations. Thus the increase is all the more impressive.
ReplyDeleteOne of the agency's responses to its problems in Federal Court has been to try to change the rules to require less articulation in ALJ decisions and to make other policy changes like undermining the treating physician rule. Think about that for a sec. Some ALJs are getting a lot of decisions wrong. You have 2 general ways of addressing the problem. Help them to get the decisions correct (by that I mean make the decisions bear some resemblance to the reality of whether claimants can really perform SGA) or provide more cover for the wrong decisions. It's shameful when they do the latter, as the result is more injustice and human suffering for the affected claimants.
ReplyDelete6:29: you've articulated my fear with the proposed changes in the treating physician rule. Ignoring or not properly evaluating a treating physician's disabling restrictions is the simplest way to obtain an AC or fed court remand. By taking away this away, it will allow for cover of horribly written ALJ decisions. The AC or fed court will no longer be obligated to do something about these decisions.
ReplyDeleteThis is a direct response to the worsening quality of decisions over the past few years, and the decline of the Appeals Council. It is really useless to claimants. The mission of the AC has changed. Due to their new mission to quality review ALJ approvals, the focus has really shifted to vacating ALJ approvals, rather than poor quality denials. It certainly is more politically expedient. Even the most egregious denials are simply being rubber stamped by the AC (after pending a year). No coincidence at all that I am filing more and winning often in the district courts. I do not want to be there, but it was the logical and foreseeable consequence of changing the mission of the AC. Further logical consequences I see, more and more agreed remands in court. OGC is overwhelmed and can not defend garbage. Talk to these guys, they have had it with the AC! And more and more delays at the hearing level. The AC is vacating and remanding ALJ approvals to be reheard...by the same judge... who then just approves the case again! ridiculous.
ReplyDeleteAC is missing simple remands on obvious issues like not mentioning a medical source statement, or giving great weight to a source then not putting the limitations into the RFC. The good news is that there are many more stipulated remands in federal court.
ReplyDelete@11:23
ReplyDeleteAgreed, although I would bet SSA's counsel in the number of cases which stipulated remand is offered, which is approaching a majority in my experience, does not like this arrangement. I am not sure you meant to, but you bring up a good point.
Stipulated remands are generally with the agreement that an award of an EAJA fee is appropriate. That could certainly be a significant factor in the increase. Stipulated remand is consistently offered, when it is offered, only after filing of the opening brief. As such, an EAJA award at the time of remand would represent a significant portion of the possible eaja fee as the only outstanding matters in a standard district court case is reviewing the response brief, and preparing/filing a reply brief.
This is all presuming the district court involved does not require summary judgment, which could shift the EAJA fee calculations a bit.
Where does one file a complaint to show a crossed out previous year date to a next year post dated application date by the CR, the SSA folks only giving out the SSI portion and not the SSDI portion and then the SSA only accepting the insurance adjuster's word on what the insurer will pay out to cause the SSA offset, according to the SSA's own printout. (never got the employers stated amount to the SSA either! This amounts to at least 1000.00 per month for over two decades. So again, how does one get to file a complaint when I've been trying for so long and cannot get anyone in the SSA to respond on these issues? Even going to congress members of both parties was useless.
ReplyDeleteFYI, this has happened to other injured workers too. even to the point the SSA just flat out stopped an IW's SSDI with no SSA doctor report and then she fought and waited for ten years and VOILA, she only got SSI. After 2 years a SSA doctors said she was worse and the SSA failed to acknowledge her disability.
There's something greatly amiss with the SSA and injured workers WC & SSA benefits that are being greatly lessened AND does it depend on who the employer (a federal contractor with its unions) is that gets to have an influence on how disabled injured workers get their benefits?
This has been going on since the early 90's with no help in sight. I would like to know who to contact. I am not giving up on this because there are far too many people that have been robbed of their benefits for well over two decades and they have to pay medicare out of their meager monthly SSA-SSI benefits. Thank You, Dina J.Padilla
@Dina Padilla
ReplyDeleteSo...most of your complaints are entirely by design, other than a social security employee crossing out an application date. That is pretty easy to fix though. Following up on an application on a weekly (if not daily basis) until you receive confirmation that your application has been recognized is pretty standard. It is not unheard of for a field office to...lose an application.
In regard to your complaints about: only being awarded SSI, as opposed to SSDI, worker's compensation, federal contractor/unions, getting kicked off of benefits without an SSA doctor reviewing the recipient; all of these actions are legal and by design. It does depend on the circumstances though. Some federal employees have retirement plans which interfere with social security, while others do not. Some state's worker's compensation laws interfere with social security, while others do not. SSA can kick an individual off benefits with or without examination depending on the circumstances.
Put simple, hire an attorney. Every single issue you stated are issues currently being fought in the courts, or before the Administration.
If you want to fight these actions without an attorney, you would need to complain to any number of individuals. Congress could modify the Social Security Act. The President could appoint a commissioner willing to modify Social Security regulations. State politicians would likely be responsible for modifying worker's compensation board statutes.