Below are reports on representation at the initial, reconsideration and hearing levels over the time period 2008-18. These were obtained by the National Organization of Social Security Claimants Representatives (NOSSCR) and published in its newsletter, which is not available online to non-members.
Note that Social Security is careful to say that their systems were not set up to capture this information at the initial and reconsideration levels, requiring them to rely upon "proxies." The numbers at the hearing level were captured from a system that was set up to capture this information. I regard the initial and reconsideration numbers as suspect. I doubt that there were increases in initial and reconsideration representation over this ten year period to this extent, particularly the increase indicated at the initial level.
The more reliable numbers at the hearing level show what I expected, a decrease, largely related to the failure to increase the cap on fees that may be charged Social Security claimants. Social Security claimants are being so well protected against greedy attorneys that many of them cannot find an attorney to represent them, especially if they have an SSI claim.
The more reliable numbers at the hearing level show what I expected, a decrease, largely related to the failure to increase the cap on fees that may be charged Social Security claimants. Social Security claimants are being so well protected against greedy attorneys that many of them cannot find an attorney to represent them, especially if they have an SSI claim.
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16 comments:
I don't think the cap is terribly relevant, few cases are old enough for back pay to reach the cap.
Think more reps are becoming more picky about their cases. Just not worth the time and effort for the longer shot cases.
"few cases are old enough for back pay to reach the cap".... I do not find this to be true at all. While the case wait time is happily less between reconsideration and hearing, the front end of cases has lengthened considerably. With low staff at field offices, and state agency workers getting slammed with CDRs as the priority, the overall wait time for a hearing decision from the beginning of a claim hasn't changed much at all. Its just rearranging the deck chairs..... It's quite for me to have a hearing approval that is not a full fee. I do think that folks who do are not truly disability practitioners have just dropped out. Centralized scheduling makes it harder for those who practice in multiple areas where you can not predict a calendar 6 months in advance.
There are a lot of unrepresented claimants winning disability. So there is potential if you can identify the right claimants. This is hard. So my firm is trying to keep cases mainly with people over 50. Just better odds.
The problem with the fee cap is that there is no corresponding minimum fee to balance out the maximum fee. There should be a minimum fee (say equal to 2 months of benefits) to make sure that a rep gets a fair fee on a favorable case.
Also, there should be withholding for legitimated expenses (such as medical record fees).
Many times I have to turn down a case because there is a low rate, not much accrued and I would have to spend a few hundred dollars on records. It would cost me money to take such cases.
@11:07
Anecdotally, we haven't seen a non-cap fee in a few years.
Average SSDI benefit is $1234/month. 25% is the standard fee agreement rate, so that's an average fee rate of $308.50/month, meaning the cap is reached in 19.4 months from onset on average. Between initial and recon, that's 8-9 months. Our local OHO's wait time is 20 months. Also, post hearing decision time and notice of award is another 2-3 months. So if the claim reaches hearing, that's a full fee. That's ignoring the fact that retroactive benefits are available up to 12 months from application, which would make the cap reached even further. So in a title II case, I would estimate 99% of the time, it is a capped fee.
As to SSI, $771/month, so that's $192.75/month. No retro, so that simplifies matters. Cap would be reached in 31 months. Initial and recon are again 8-9 months, and hearing is 20 months. Decision writing and notice of award time is 2-3 months. So the average SSI claim reaches the cap, barely.
Those are interesting numbers, 3:58. Sounds like your hearing office(s) are all or nothing without later onsets and without you needing to amend the onset date to hit the grids.
I'm in a prototype state with a far shorter hearing wait time, and I don't know if I've ever seen an SSI case hit the cap, even if a prior determination is reopened.
I don't have to guess the percentage of cases at the cap. For this year alone, roughly a third of all cases in my office were at the cap. If the cap was at $7,500, where it would roughly be if the same COLA had been extended, and assuming the average increase in fee would be about two thirds of that increase (not all cases would be at the higher maximum) the cap has cost my firm approximately $1,000 per case for one third of all my cases.
To say as the first commenter said that there are few cases where it matters, you are simply wrong.
Raise the cap to $7500 and see even more unrepresented claims.
@11:04
3:58 here. Good catch. Yes, our hearing office with the exception of 1-2 of the dozen or so ALJs do not go with amended onsets. Not sure why. Certainly if other hearing offices' ALJs are encouraging/receptive to amended onset, that could make a big difference.
From 11:07 "Think more reps are becoming more picky about their cases. Just not worth the time and effort for the longer shot cases."
This is a very interesting statement. Back when approvals were high, reps were more willing to gamble on a claim getting paid. Over the years here on this very blog they called them 50/50 cases and it was worth a shot. Now there are some reps looking at cases to see if the person is truly disabled and will meet or equal a listing. I think this represents a much more responsible level of representation. I am sure there will be backlash to stating such a thing, but there it is.
8:40 AM says
Raise the cap to $7500 and see even more unrepresented claims.
Why would that be? Clients do not look at the cap figure but instead are focused on the contingent nature of the fee. I always explain to my clients that the fee is 25% which is currently capped at $6,000.00 and has been raised in the past and could be raised again. I also explain that the fee is not capped, as explained in the agreement, if the appeal goes beyond the ALJ. I have never seen a client who said the fee cap determines whether or not they want me to represent them.
Unless you think that the fee is the cap figure of $6,000.00 which it is not. The fee is 25% of the back benefits which in most cases is less than the cap. Believing the fee is the cap figure is something that I have heard from SS employees at times. That is just wrong.
@ 11:07. Your math only works if we would get paid more of the cases above the average monthly benefit. Sure we can earn max fees on the cases with $1200 and above monthly PIA but that's only half the cases, the other half, which fall below the $1200 mark don't always result in a max fee.
As more and more firms move out of this area of practice, either because they no longer find it financially viable or because they cannot manage the logistics of having their schedule set 6 months in advance, it may present an opportunity for the smaller firms. Those who do things well and have persevered through the years by choosing the right cases, fighting hard for the difficult cases, and managing their costs hopefully will see an increase in their caseloads to at least help offset the lack of an increase in the fee cap.
12:49 - Not sure taking a case could ever be deemed "irresponsible" based on the merits unless it's completely frivolous. Not every case is a grid or listing allowance.
@2:37 sounds like you were one of the 50/50 folks.
4:20 - I am, but I resent being called an irresponsible representative because I am willing to take more professional risk than you.
Although I miss my friends and colleagues (such as Charles), I am so happy at the timing of my retirement. In the last year or two of my practice, most ALJ's almost ALWAYS allowed only about 1 year of past due benefits. Also, many firms located in more urbanized areas have clients who made much more than minimum wages. I did cases in Western NC, and I only saw the fee cap once or twice a year. As I looked at my statistics for the last 4-5 years of practice, my clients were awarded benefits 85% +/- 5% of the time. Out here in rural counties, workers are still paid minimum wages or somewhat more, so they won't get much earned income credit anyway, so the fees awarded for 1 year often were barely enough to cover expenses. I still try to read Charles' blog a few times a week, but I see nothing that would encourage me to want to go back to that practice.
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