The Administrative Conference of the United States (ACUS) compiles a yearly report on the attorney fees paid by federal agencies under the Equal Access to Justice Act (EAJA) to those who sue them or are sued by them when the court determines that the agency's actions were not "substantially justified."
The Fiscal Year 2019 report has come out. It shows that the Social Security Administration paid out a total of $45,842,213.45 in 8,223 cases, an average of $5,574.88 per case. To give a comparison, the agency that paid out the second most dollars was the Department of Commerce with $6,068,000.00 in just three cases. In terms of numbers, the Department of Homeland Security was second at 46 cases. Overall, Social Security accounted for 99% of the number of EAJA awards and 78% of the dollar amount of all EAJA awards.
Sounds about right. I think most of the agency's staff puts forth their best effort. But a lot of SSA's Administrative Law Judges seem to be completely untrainable and unwilling to quit making the same mistakes no matter how many remands they receive.
ReplyDeleteThe pattern I have noticed is that they get remanded frequently on certain issues (because many ALJs simply ignore the agency's own rules) and then change their rules on the issues they get remanded on (e.g. treating physician rule, credibility, mental retardation, etc).
ReplyDeleteFor SSA, this may be a good deal. These costs may be side effects of denying cases that are pretty strong claims. Although the courts send some back, the court response is overall small compared to the number of denials. The savings from the denials likely outweighs the costs of the remands.
ReplyDelete@ 9:28AM You are precisely right. SSA got beat up so many times about failing to properly apply the treating physician rule and rules about consideration of opinion evidence that they simply changed their regulations so they no longer have to explain those findings instead of doing the more appropriate step of making sure they applied the existing rules correctly.
ReplyDeleteI explain to my client's that dealing with SSA is like playing a game where your opponent can change the rules at any time. If you are playing football and you find that your opponent's secondary is their weakness, you exploit that by constantly throwing the ball and scoring. But if your opponent is SSA, they could just decide to change the rules and outlaw the forward pass. Clients quickly understand how rigged the system is against them.
Yesterday, I received a District Court remand in a case involving a 64 year old man who had limited use of his right, dominant arm He had a permanent restriction of lifting no more than 15 pounds with that arm. The ALJ (now retired) found that the claimant was not disabled because he could perform medium work in that he could lift 50 pounds using the left arm only. There wasn't any evidence to support that assessment. That case was fully briefed at the Appeals Council. The Appeals Council denied the Request for Review.
ReplyDeleteThe Court's Remand Order stated: "There is no medical or logical support for the proposition that a 64 year old with a 15 pound restriction on his dominant arm can nonetheless engage in medium work, including occasional 50 pound lifting and frequent 25 pound lifting with the other arm." The Court also said: "For the ALJ to conclude that he could occasionally lift and/or carry up to 50 pounds...with only his left arm strains credulity, and there is no medical evidence or subjective testimony supporting such a finding."
I do not understand why the Commissioner's Attorney's defended this case. This appears to be the type of "slam-dunk" case that a voluntary Remand would be in order.
11:04,
ReplyDelete9:28 here. Why should they have to explain anything? Just give a thumb up or thumb down like in the Roman Coliseum.
@11:45
ReplyDeleteThere is something weird going on for the past year or so. Stipulated remands seem to be drying up. Our win rate at Court hasn't gone down. If anything it has gone up, we just end up winning after a longer delay. If I had to guess, I would think that the assigned attorneys are suggesting to the higher ups that they offer a stipulated remand and the higher ups are denying the request.
@11:48
ReplyDeleteThumbs up or thumbs down like juries do in just about every aspect of civil and criminal trials, including murder trials? Oh, I know, it's much more nuanced than that because sometimes they have to check multiple boxes without explanation or support, but they certainly don't have to jump through the number of hoops SSA does to survive substantial evidence review.
The majority of court remands I see are legal errors via strict interpretation of the Regs so that judges can remand cases without having to worry about substantial evidence. The courts are every bit as arbitrary and incapable of applying the Regulations as the ALJs.
I wonder how the current court remands break down by circuit and the overall remand rate over time. A 2016 Penn Law study noted that remand rates varied drastically from region to region (20.8% remand in E. AR vs. 76% remand in S. NY). This study was performed on cases decided from 2010-2013. Since then SSA has increased quotas for ALJs and decision writers, leaving even less time to perform an analysis that will withstand a court clerk's scrutiny. The downstream effects seem pretty obvious, with ALJ remand rates cratering. I haven't seen any concrete numbers, though.
ReplyDeleteI have also seen more fully favorable decisions being pulled for review. This has been happening a lot.
ReplyDelete11:45, If the court cited your client's age as part of the reason that medium work is illogical, then the court erred as well. Age is not a factor in determining how much a disability applicant can do, it only becomes relevant in determining whether the applicant can adjust to other work. It sounds like the judge is new or just careless.
ReplyDelete@6:45
ReplyDeleteYou may be right from a legal standpoint. However one good thing about the extra scrutiny that Federal Courts give cases is they can spot absurd or ridiculous results, and call them out for what they are. Few people can lift 50# with one hand regularly in a full time job. I suspect that the record contained no evidence of the person being able to do that meaning the finding was not supported by the record.
12:54 PM You are correct. The fact that the claimant was 64 years old only added to the absurd decision of a man being found able to lift 50 pounds with one arm. The ALJ who made that decision is now retired. The case will not go back to him. I am hopeful that the decision after the Supplemental Hearing will
ReplyDeletebe Favorable to my client.
Several years ago when I first started specializing in this area, I would spend at least a few hours on each case drafting a well written brief for the A/C. I quickly learned that this was a waste of time. Now, I may spend 15-20 min at most, and decided to better utilize those hours for federal court work after the inevitable A/C denial.
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ReplyDeleteWhat percent of the appeals filed are actually read at the Appeals Council? I estimate that a number are not read. I can brief specific errors to the Appeals Couneil, let them rubber stamp the ALJ denial, and then argue the same specific errors in the federal court, and SSA then requests a voluntary remand of the case!
Years ago, about 75% of the federal court appeals involved a small number of ALJ's, about 15-20% of the ALj's. Is that still true today. One attorney referred to these ALj's as the "repeat offender" ALj's!
SSA does not care about the federal court remand rate. They focus only on the Appeals Council remand rate. Every federal court remand has gone through the Appeals Council first and the AC didn't identify a problem. Judges are supposed to have an 85% approval rate ("agree rate") with the Appeals Council, but there is no similar goal for federal court cases and ALJs don't receive stats about their federal court approval rate. ALJs are told not to cite federal cases in their opinions (with very few exceptions), and are instructed to follow Agency regulations and policy, even if these conflict with federal cases. Because of the Agency's stance, it does not blame ALJs for federal court remands. Federal judges spend much more time per case than either ALJs or the Appeals Council, but SSA doesn't care to change the set up and doesn't mind having a 50% or higher remand rate in the federal courts. It's a longstanding tradition!
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