The Administrative Conference of the United States (ACUS) is a federal advisory body that makes recommendations for federal agencies, generally dealing with process issues in administrative rule-making and adjudication. ACUS is currently studying how agencies can improve representation in cases pending for administrative adjudication.
Let me suggest that access to representation at Social Security could stand some attention. You say, "How can that be? I've seen TV ads for Social Security attorneys." First, you probably haven't seen nearly as many ads now as there used to be. The number of attorneys handling the cases is down dramatically. Profit margins are down. Television advertising is no longer cost effective for most firms. Second, and more important, while it's easy for SOME Social Security disability claimants to obtain representation, it's hard for MANY others to obtain representation. If you're 55 and older, you'll probably find an attorney without difficulty. If you're under 50, it may be difficult. Some firms explicitly refuse to take on cases of any claimants who are under 50 or 55. Almost all others are careful about taking on clients who are under 50. This makes sense as a business matter since profit margins are low. The chances of success are significantly lower for younger claimants. You can make money on clients who have, let's say, a 60% chance of success but you can't make money on clients with a 40% chance of success. Does that mean that younger people don't deserve representation? No, most of them deserve a fair chance at proving disability. A 40% chance of success doesn't equal a frivolous case. It's still a case that the claimant should have representation on, especially since that claimant needs more help, but, for the most part, he or she can't get it.
I hear ALJs decry the number of no-shows for hearings. Do they notice how many of those cases are claimants under age 50 who are unrepresented? There's a reason those claimants don't show up. They got discouraged because they couldn't find attorneys even though they would have some reasonable chance of success if they were represented.. That's not good for those claimants and it's not good for the system.
How do you make me as an attorney who represents Social Security disability claimants more interested in the cases of younger claimants? The only solutions that I know of are to make the cases less difficult to win or to let me charge a higher fee when we do win.
Don't dismiss consideration of whether it's too hard for younger disability claimants to get approved. My perception is that over the years that age has assumed a greater and greater weight in determining disability. I get the feeling that attorneys screening calls from prospective clients aren't the only ones applying quick and ready rules of thumb. Would anyone deny that problem exists at the initial and reconsideration levels? Has it crept into ALJ behavior? Age certainly should be important. People naturally become less adaptable as they age. (If you don't understand this, just wait. You'll get older and you'll understand eventually.) However, my impression is that age is too big a factor now. Younger claimants don't get a fair shake. If you're in severe pain, it doesn't matter whether you're 25 or 65, you're not going to be able to work. We're not giving enough consideration to the effects of cognitive limitations and mental illness, which make adaptation difficult even for younger people. We're expecting more of people than is realistic.
Please, if you're a Social Security employee who thinks Social Security attorneys are foolish or mean or unprofessional for not taking on more cases of younger individuals, leave the agency and start representing claimants yourself. You'll find plenty of younger clients. We'll see how long you last.
21 comments:
To help claimants the commissioner should authorize an increase every year. Last year 6000->7200. This year authorize a 600 increase to 7800. Next year another 600. Until the fee reaches 10k. Then peg the fee to inflation.
"The only solutions that I know of are to make the cases less difficult to win or to let me charge a higher fee when we do win."
And that right there folks is all you need to know about this blog. Put right there in black and white.
Are there statistics that show less claims for younger people are approved now for all cases, represented and not represented compared to the past?
As a T2 claims specialist, I haven't seen a significant decline in younger claimants being approved at the initial stage but I also have very few claims with representation. But my impressions are only anecdotal.
Charles is spot on with his analysis. After getting denials on the first ten or fifteen 48 year old Army vets with unimaginable PTSD or 35 year olds who can barely walk due to multiple herniated discs, any rep with common sense stops taking cases for claimants under 50. I'm getting close to not taking anyone under 55. As much as I'd like to help these folks, I can't and won't operate my practice at a loss. I doubt SSA will ever figure this out, unfortunately.
Psssstttt.....it isnt SSA's job to make sure you business is profitable.
@ 3:05 PM Psssstttt....Without the business model being profitable, attorneys will no longer be involved in the process in a meaningful way. SSA really needs representatives involved in the process, particularly at the hearing level, or it will be able to function.
The hearing offices barely have enough adequately trained staff to be able to have a claim exhibited less than a week before a hearing. Without representatives involved in the majority of claims, do you really think OHO is going to have the ability to develop the medical evidence for all of the claimant's?
I am not suggesting that SSA make cases easier to win, but at the very least they should not be doing things that undermine the represenative process.
3:05 - no argument here. But don't be surprised when increasing number of unrepresented clients gum up the already dysfunctional and understaffed system. I suspect that most termination cases involve unrepresented clients since it is practically impossible for a lawyer to get paid on these cases. It would be interesting to get a judge's take on the issues that arise when unrepresented claimants appear at hearings.
Perhaps the answer is to change the economic incentives. Why not lower the maximum fee for claimants over 50 years old and raise it for claimants under 50 years old. If obtaining favorable decisions for claimants over 50 is more likely than obtaining favorable decisions for claimants under 50, why should the maximum fee be the same for both types of claims? Why not reward the extra effort and skill needed to obtain favorables for claimants under 50?
" If you're in severe pain, it doesn't matter whether you're 25 or 65, you're not going to be able to work. We're not giving enough consideration to the effects of cognitive limitations and mental illness, which make adaptation difficult even for younger people. We're expecting more of people than is realistic."
You know that's not how cases are adjudicated, Charles. DDS analysts, at least, have to work within the framework set by SSA. We can't allow everyone who is in "severe pain". We have to go by the objective evidence in file, which often does not support the subjective complaints of pain. While the ALJs have far more leeway, they still can't allow everyone based on reports of pain.
Reps hear one thing from the claimant, while analysts and ALJs see another in the records. It's just a truth of this job. And no matter what economic changes are made, it won't change that part of the system.
Sure an attorney may not make money from a 25 year old alleging a back impairment but how do attorneys live with themselves taking a case that will be an obvious allowance such as a claimant on dialysis or a cancer patient with metastatic cancer. $7000 bucks do to a function report and work history report. Explain that
If a $7000 fee is being paid on a cancer or dialysis case it means SSA or DDS dragged their feet or dropped the ball to process the case in a timely manner, especially in light of the 5 mos waiting period. I would hire an attorney if I was dying and had to deal with all the nonsense that comes with dealing with a disability claim.
@4:41 - Can you imagine the messed up fees in those scenarios? We cannot even get the flat 25% correct.
If you're complaining that the profit motive that SSA had to bake into its own appeals process isn't enough for you, why aren't you also complaining about national non-attorney rep firms like Citizens Disability? Andrew Youngman isn't even an attorney. He's an equity fund scumbag who got rich generating garbage claims and poaching real claims from local firms.
At least Binder & Binder was an actual law firm, shady as they were. Citizens Disability is a document processing firm with an overseas call center.
If DDS would have approved your "slam dunk" scenario, attorneys wouldn't "have" to get involved. Furthermore... all this complaint about the "operating budget..." Just think how much operating expenses SSA could save by "getting it right" the first time, instead of 2nd, 3rd (ALJ), 4TH (AC), 5th (Federal Court remands), 6th (2nd application), 7th, or 8th time (2nd ALJ)?
This is a fascinating take. Younger people are regularly represented, and those with a reasonable chance of obtaining disability have little trouble finding representation regardless of their age. Younger individuals with little or no chance of being found disabled are represented all the time.
A number of our no shows are 50+. It’s fascinating (but not all that surprising) that this blog notes that reps are telling claimants they have little or no chance of winning their case, but it’s SSA’s fault that they’re too discouraged to show up to their hearing. There’s no doubt that this is happening, either, because unrepped claimants say as much.
Younger people are inherently at a disadvantage under the rules because they have to establish they cannot sustain work activity at any level, not just above the sedentary or light levels. 50/55 cases are rarely awarded on the basis of total disability, pain preventing all work, etc. They’re awarded on the antiquated notion that a current 51yo with a high school education is simply incapable of learning or performing sedentary work.
SSA isn't going to make it easier for younger claimants to win, and having more pay for winning younger claimants' cases is not a realistic nor workable option. The only solution is that lawyers who want to make a profit need to screen the younger cases and see if they are winnable. I'd love to have only older easier to win claimants ringing my phone off the hook but that's not the case. Many calls are from younger individuals and the vast majority of younger ones are likely not winnable, but sometimes there are some good cases from young claimants, and not taking the time to look for them is like leaving money on the table. The other side is that if you accept younger individuals and the SSA doesn't give them a fair shake because they are younger, that can mean EAJA money when the case is remanded which can mean even more money. I have no problem considering representing younger claimants who contact me. Sure my screening of younger claimants is quite strict, as well it should be because the decks are stacked against them. But it's worth the effort when a good younger case is discovered. All claimants deserve to have lawyers at least consider representing them. It's to the benefit of the claimants and the lawyers.
One wonders that it might be hard to get paid on those cases because they are not disabled.
@6:03 you illustrate an excellent point in your misunderstanding of SSR 16-3p, which states:
"We will not evaluate an individual's symptoms based solely on objective medical evidence unless that objective medical evidence supports a finding that the individual is disabled"
"...we will not disregard an individual's statements about the intensity, persistence, and limiting effects of symptoms solely because the objective medical evidence does not substantiate the degree of impairment-related symptoms alleged by the individual. A report of minimal or negative findings or inconsistencies in the objective medical evidence is one of the many factors we must consider in evaluating the intensity, persistence, and limiting effects of an individual's symptoms."
If the case is related to a mental impairment, then the entirety of the record will be based on an individual's subjective experience of symptoms and the TP's treatment protocol is based almost entirely on subjective complaints with or without a MMSE because that's how psychology works. If you are being treated for any mental impairment not in remission you have, by diagnostic definition, a functionally impairing condition that has lasted however long the DSM prescribes.
I've been on both sides of the aisle here, and I did not screen my clients for age. I chose clients who contacted me and allowed me to take their case, weeding out potentially malingering clients. Most were under 50 with severe psych impairments (seeing a theme here).
The agency 10000000% works harder on 50+ claimants due to sheer probability and on claims with reps at all stages of appeal. Federal court is the only place in the process where all the evidence is reviewed by one person and considered thoroughly with very few exceptions because gotta keep those chickens on the line or the boss whips ya for not meeting its arbitrary goals. Make your brief look like it's going to court at any stage and you make them sit up and take you seriously. If they can literally copy-paste your analysis and citation of the record into the determination and you're halfway there.
CDRs almost never have reps unless a nonprofit is involved due to lack of fees, and those cases are invariably poorly developed because claimants are vulnerable impaired people who SSA has found unable to perform significant tasks but somehow capable enough to comply with the process and provide all the necessary evidence.
Off soapbox.
8:47: you don't screen your clients for age???!!! How do you stay in business? I think you are doing the 42 yr old factory worker with a L/S herniated disc (no surgery) a disservice by taking on their case and keeping their hopes up for the 1.5 - 2 yrs to get an ALJ hearing. This person probably has a 95% chance of ultimately getting denied, with the only hope they draw one of the very liberal ALJs. I think this person is better served by explaining the disability criteria to them and encouraging them to look at other options. Sure, there are under age 50 cases that are awarded (multiple sclerosis and severe psych impairments with psych hospitalizations come to mind). But those claims are the exceptions and not the rules.
@10:47
Not original poster, but I still win 80% of my under 50 claims. Granted I also have a Federal appeal practice and screen all cases, but there are some OHO/Fed Court jurisdictions where it still makes sense to represent younger claimant's.
That being said, the economics even in the most favorable OHO jurisdictions have changed. Our firm looked into purchasing a solo SSD firm last year, and I could not believe the quality of claims that this non-attorney rep was taking. She basically took everything and did extremely high hearing volume. Her caseload was 3x our practice, but she brought in basically the same revenue. The OHO that 90% of her claims originated with had 50+% of the older ALJs retire in the last 5 years. It made a dramatic difference in the overall approval stats in that office, and made her practice model unsustainable.
I think SOME of you are missing the real point (intentionally?). The problem is, SSA is denying people who are, for all real world, practical purposes, incapable of performing AND sustaining a job at SGA levels... just because they're under 50. Seriously, what percentage of those denied by an ALJ return to work? Telling them they're screwed 'cause they're only 42... Well, suddenly they get that they can actually work, right? Surely, you can't be serious?
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