The National Organization of Social Security Claimants Representatives (NOSSCR) filed a Freedom of Information Act (FOIA) request for information on the extent of representation of claimants who had hearings on their Social Security disability claims. The response they got back shows that 80% of Title II claimants, that is claimants for Disability Insurance Benefits, Disabled Widows and Widowers Benefits and Disabled Adult Child Benefits were represented ins fiscal year 2018. That went down to only 57% in Supplemental Security Income (SSI) only cases. It was 76% in cases involving both a Title II claim and an SSI claim.
The important thing is that representation is down significantly. In 2010 about 95% of claimants were represented at Social Security disability hearings. The major reason for this is that the cap on fees for representing claimants hasn't been raised since February 4, 2009. Ten years of inflation has slowly harder and harder to represent Social Security claimants. We have to be more and more careful about the cases we take on. The result is clear. It's more difficult now to find an attorney to represent you on a Social Security disability claim.
The important thing is that representation is down significantly. In 2010 about 95% of claimants were represented at Social Security disability hearings. The major reason for this is that the cap on fees for representing claimants hasn't been raised since February 4, 2009. Ten years of inflation has slowly harder and harder to represent Social Security claimants. We have to be more and more careful about the cases we take on. The result is clear. It's more difficult now to find an attorney to represent you on a Social Security disability claim.
16 comments:
Based on most recent CPI data the real value of the fee cap has fallen from $6,000.00 in February 2009 to $5,067.64 in December 2018. This fails to account for the further reduction caused by the inflation adjusted assessment SSA charges to withhold fees. Not that the withholding isn't a valuable service but it is subject to automatic a cost-of-living adjustment.
"We have to be more and more careful about the cases we take on." Rep speak for no more taking 50/50 claims to see if we get lucky and get paid spinning the DIB wheel.
I never understood the fee cap. I get 1/3 on an auto accident case with no cap. If you wanted talented lawyers to represent claimants, then the fees need to reflect the risk/reward structure of other types of cases.
If SSA is afraid of reps getting a windfall, then they could pay a reasonable hourly rate....
Also, if there is a cap, then there should be a floor. I have had numerous cases where I get my client gets a partially favorable where the accrued is cut, reducing or eliminating the fee, but my client gets lifetime benefits. If there is a cap, then there should be a floor (say equal to 2 months of benefits) on the fee as well.
My thoughts exactly, 9:36!
At SSA it is not uncommon to get complaints from claimants who win ALJ cases that the reps did not earn the fee. Potential bad pub could be a reason for no one except reps getting behind an increase.
11:10
There are always disgruntled clients, but the results speak for themselves. If the rep won the case, then the claimant doesn't really have much to complain about.
Also, no one forces them to be represented.
Most Claimants don't see the work a rep puts into a case. Most of the effort on a case is working up the file before the hearing. The Claimant does not see all the effort that goes into obtaining and reviewing evidence, getting medical opinions, and writing briefs.
I have usually won my cases before I ever sit down at the hearing because I have proven the claim with the evidence and explained the claim to the ALJ in my brief. All the Claimant sees is a (typically) short hearing. Fortunately, most of my clients realize the work I put in and are happy with the results.
Further, a claimant can object to the fee if they truly do not believe it was earned by the rep.
I am not sure I see the correlation between failure to raise the cap and the decrease in representation. I do not know any fellow atty reps who are still in this area of practice who are turning away work because they cannot take on more clients. I think the decrease in representation has more to do with the decrease in pay rates and the increased burdens on reps who are now less likely to take on marginal cases than compared to several years ago.
Well it would probably help if the agency (and State Bars) quit allowing the practice of law by non-attorneys. Also get rid of these national disability companies (and you know who I'm talking about), which are merely a clearing house for claims, who then sub out the hearing to a local representative for a pittance and keep the rest. 60% of cases are represented by someone who meets the claimant in the lobby immediately prior to the hearing.
2:25 Do you have data for the 60%?
Why do you think it is an unintended consequence? Think about it.
There is a sad fraction of reps who do literally nothing other than send in the fee agreement and appointment and show up for the hearing. They are few and far between and they result in the bulk of the complaints about the rep being paid.
Good reps bring 50-50 cases all the time. What I don't see much of is the "are you joking?" cases any more.
No more watching a rep with a straight face try to elicit how a properly healed collarbone fracture makes it impossible for a 28 year old with no other impairment to work. No more instances of reps trying to flesh out the impact of the three seizures the claimant had while tip-toeing around that the fact that the claimant tested positive for cocaine each time.
I love claimant representatives. With few exceptions they make everything go smoother.
I have no problem with a 50/50 chance case. Problem is some very strong cases are getting denied. You have to often attend supplemental hearings on ones you do win, and then often onset gets cut leaving a very small fee. An increased fee cap for those rare cases that generate past due benefits above $24,000, would go a long way towards helping us meet our overhead costs in this environment. Yes, that would mean some higher past due benefit claimants would be essentially subsidizing the legal work of the lower fee claimants, but at least it would help to keep us in business and representing claimants who need us.
Want to make money doing DIB claims as a lawyer? Become a NHC ALJ.
The fee cap is expedient for SSA, and may even be useful in pre-hearing approvals or simple hearing cases. But if your hours are worth more than $6000, and the 25% allows for more...why not just withdraw the fee agreement and file a fee petition? No one has to be held hostage to the $6000. The agency must have an incentive (an helping claimants is never it) to change anything. The reality is that $6000 is too little in most of my cases. The attorneys are now doing everything from pre-application consults, initials through dunning the agency for the clients to even get paid after a favorable decision. We have long filed 2 tier agreements and do not accept 6k cap for remand cases. There is no reason to accept 6k in a complex case where there may be multiple hearings, proffers, etc. I am pulling my fee agreements in cases where my time supports a higher fee and (with agreement of client) asking for up to a full 25% based on an hourly. If the ALJs were seeing heavy increases their workload due to large increase in fee petitions (due to the cap insufficiency) it would incentivize the agency to increase the cap rules. Ask for your time to be paid.
You stated: “I am pulling my fee agreements in cases where my time supports a higher fee and (with agreement of client) asking for up to a full 25% based on an hourly.”
Renoegotiating the fee in the middle of the case would violate the ethical rules of most, if not all, State Bars. If you are not a lawyer, it may not violate the Rules of Conduct of SSA - I haven’t looked at that issue.
I believe 12:04 was just referring to two tier situations, where the case gets appealed or remanded. This clause in our firms fee agreement as well. We use the expediated fee process for cases that get decided at the first hearing, but elect to use the fee petition process for those cases that are won a second hearing or after a fed court remand.
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