Below is a report on the rate at which claimants were represented at various levels of appeal on Social Security disability claims in Fiscal Years (FY) 2016 and 2017. This was obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in their newsletter, which is not available online. These numbers have to be as of the date an appeal is filed rather that as of all pending cases. Otherwise, there would be a much greater total number listed for the hearing level.
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Here is a chart of the representation rate at the hearing level in earlier years. Note that the total representation rate by attorneys and non-attorneys at hearings was around 95% in 2010 as opposed to the 80% shown above. The numbers aren't directly comparable since the 80% figure probably doesn't include claimants who obtained representation after filing a request for hearing but it does make me wonder if the representation rate has gone down. My guess is that it has gone down because of the decrease in allowance rates since 2010 and the effective reduction in attorney fees because the fee cap hasn't been raised. Those who represent claimants have to be more careful about the cases we take on. What was once a marginal case we would took on is now a case we don't take on.
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By the way, every time I post something about the inadequacy of fees for representing Social Security claimants I always get one or two posts saying something like "If the fees are so low, why don't you just stop representing Social Security disability claimants?" I strongly suspect these posts come from paid shills who are representing interests which are hostile to Social Security in general and to Social Security disability benefits in particular. Really, why would anyone want Social Security disability claimants to be unrepresented unless they felt some animus towards Social Security? Of course, the answer to the question of why I don't stop representing Social Security claimants is that I can still make money doing it; I just have to be much more careful about who I represent. I'm turning away way too many claimants whom I believe have meritorious cases. I fear that many of the claimants I turn away don't pursue their cases because they can't find representation. I'm sure this pleases those who pay the shills but it's not good public policy.
15 comments:
Regarding the drop in representation rate at the hearing level, your theory is certainly conceivable. However, most of the representative withdrawals I've seen have occurred in cases where the claimant returned to work full-time or at an SGA level. I've also seen numerous instances where the representative withdrew due to lost contact with their clients (who have, in most instances, returned to work). So, my guess is that this is a significant factor as well.
@9:30
Maybe, but in that scenario our normal practice is to request the client authorize us to withdraw the claim, not just personally withdraw as rep. On the lost contact though, that certainly is a possible contributing factor.
The comments asking why you don't just stop representing claimants may also come from inside the agency. There are many reasons that employees of SSA OHO prefer claimants to be unrepresented. Food for thought...
I'm not sure I'm following your reasoning here. It looks like you're comparing representation rates in all claims through FY 2010 (95%) to Title 2 representation rates in FY 2017 (80%) and concluding that the latter therefore is only a partial figure. I think the reality may be a reduction to 80% in FY17 for those claims, including representatives who signed on after the hearing request. I also wonder whether the limitation to T2 claims has any bearing, as that is a significant demographic marker.
Ignoring the specific figures, I think everyone here recognizes that representation has declined, and I suspect your reasons are as valid as any other (reduced pay rates). It's also possible -- and not contrary to your premise -- that the increased representation rates in the first decade were fueled by a perception of relatively easy work and likely fees, given the more liberal granting of benefits in those years. We could argue all day and beyond about which of the pay rates is "right" and may never agree.
For the record, this is purely an opinion and an alternative perspective. No one is paying me to be a shill, and I am always amused by the suggestions across the Internet that anyone posing a different opinion must obviously be a paid shill. I'm not naive enough to suggest that shilling does not occur, but suggestions of it should not be the first response. Plus, regardless of leanings, I do prefer seeing claimants with competent representation rather than going pro se.
You also have to remember that there are many many more CDR's now at the hearing level and those cases rarely are able to get any representation. When I first started as an ALJ, I heard maybe one CDR every 1-2 months, they are now 25% of my monthly docket. I dont have a hearing day scheduled in the next 4 months that does not have at least one CDR.
Never understood why the shills or anyone would care if a claimant had a representative or not. The SSA, as you stated, always makes it harder on us reps. The new 5-day rule is a prime example. Even the most hardened shill would probably admit a rep helps move along the process at the very least and helps the process in getting medical records. Without reps, the SSA would do a lot more unnecessary work.
Why would any care if they have a rep?
Oh and why will the SSA never recognize law firms?
We need to start allowing the government to be represented. The days of claimant's not having access to representation is long over. Claimant's being able to sit in a hearing and spout nonsense unchallenged is a farce.
This 2017 report from GAO (Additional Measures and Evaluation Needed to Enhance Accuracy and Consistency of Hearings Decisions, GAO-18-37) states that "From fiscal years 2007 through 2015, most claimants (77 percent) had an attorney representative, and 12 percent had a nonattorney representative."
https://www.gao.gov/assets/690/688824.pdf
OHO prefers a higher representation rate.
OHOs now have skeleton staff, with the legal assistant to ALJ ratio reduced to an unsustainable 1.5:1. And thanks to SCT telework (I.e. two days off per week), there's just nobody left inside the hearing offices to develop files.
On repped cases, the burden of development shifts from OHO to the rep, and saves OHO time. Also, repped hearings are potentially shorter -- fewer late arrivals, more focused testimony, less time lost explaining what's going on.
Reps probably do help move things along at the hearing level but from the DO perspective, they don't. Claims filed with the help of reps frequently arrive 1-2 months after the claimant signed the claim. Had they just come to an SSA office and filed and then got a rep they could have been a couple of months closer to a decision and still had representation. There are good local reps that respond for requests for info and then there are national (Binder and Binder types) who are of no use at all in obtaining worker's comp proof, etc to pay the claimants that are approved.
Re paid shills-I think you are giving yourself a bit too much credit. I doubt anyone cares that much to post as a shill on this blog. Whenever you mention paid shills I lose a bit of respect for your judgment.
Why is it reasonable for those who represent claimants have to be more careful about the cases they take on? What was once a marginal case we would took on is now a case we don't take on. Why? Do attorneys measure their success by some sort of approval rate for people deserving of their time and efforts? Do they measure success by fees awarded? Is there a connection for representation denied is justice denied? Do attorneys have a responsibility to themselves or their offices or to any potential client to be "careful" concerning evaluating disability vs. the responsibility of ALJs to be "careful" concerning evaluating disability? Is it fair to set a reality check on what can be done without resorting to name calling and blame?
@8:43, couldn't agree more. Long time OHO employee here. Repped files are exponentially easier to manage with fewer postponements. Postponements are productivity and morale killers. Scheduling 7 hearings for an ALJ and having 4 "no show" and then having to reschedule causes so much work for all involved. We'd MUCH rather have 100% representation.
I strongly disagree and much prefer that the claimant be represented and well represented. From my experience, a pro se claimant either requires a postponement for an opportunity to obtain counsel. Even when a postponement is not requested by the claimant, extensive development is required that further delays adjudication.
A well prepared representative who is diligent in obtaining records and zealously arguing for their client is much preferred by me and the colleagues that I have discussed this issue with.
If I believe the claimant is disabled, whether or not I think I can prove it, I will take the case. Sometimes I can build up the case before the hearing. Sometimes I get pleasantly surprised (not often). The judges from Jackson, MS OHO seem to prefer representation. Representatives can get the claimant to focus on the relevant issues.
"Those who represent claimants have to be more careful about the cases we take on. What was once a marginal case we would took on is now a case we don't take on."
I'm going to assume you're speaking only for yourself since there are plenty of marginal cases still brought by representatives as well as plenty of "why are we here?" cases. I had three this week where the claimant had been engaging in SGA the entire period they were repped without any 12-month period to look into.
I'm indifferent about representation. If an individual wants to be represented, great. If not, great. The perceived value of a rep from my standpoint is keeping track of the claimant and getting records in (most of the time anyway). For claimants that are unrepped but keep me informed of the outstanding records, the favorable rate is the same or perhaps a touch higher than for repped cases. I can probably count on one hand the number of times a rep has potentially changed the outcome of a case through their advocacy or legal skill. That said, if a claimant wants to be represented, I'm all for it if for no other reason than the claimant feels more comfortable and better able to proceed.
Also, don't take that commentary as me saying I think being a representative is an easy gig. It's not. I suspect that a lot of the drop in representation is due to fewer reps practicing in the area due to the various difficulties in sustaining a practice in this area, whether it's the capped fees, the lower award rate, etc.
Contrary to 5:12's more recent experience, I have not seen a spike in CDRs in my area. I might have had 3-4 out of 600+ hearings last year. Same with non-DIB cases. Cases without any available back pay are a tiny portion of my docket at this point. The bigger issue in my area is that there are a number of hearing sites that simply have very few, if any, representatives that could take a case.
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