Waiting In Indiana

Fort Wayne, Indiana television station WPTA is reporting on the case of a local woman who is waiting and waiting for her Social Security disability claim to be adjudicated. Will she receive expedited review now that her case has been reported in the media or does that not happen because it is too late to do it before the election?

The Dark Underside Of Social Security Representation

My firm is getting more calls ofy a certain type from out of state law firms. The out of state firm tells us that they have a client in our area. The client did not move here. What happened is that the out of state firm attracted the claimant with advertising, sometimes television advertising, but more often internet advertising. There is now a hearing scheduled. The out of state firm does not want to send someone to North Carolina to actually represent the claimant at the hearing. They want us to do that and they will pay us a fee of around $750, which is not bad money if all you do is show up for the hearing to meet the claimant for the first time and do not bother to review the file in any detail or try to obtain additional medical evidence, which seems to be what is expected.

The out of state firm has not obtained medical evidence themselves or done any real lawyer work. All they have done is to sign up the client, accept the fee if the client gets approved without a hearing and take most of the fee if the claimant happens to win after a hearing. The out of state firm do es almost nothing to help the claimant win. Inevitably, claimants with this sort of representation have a lower chance of success than claimants with an attorney who gives them active representation, but what does the out of state firm really care? It's easy money for them.

My firm is not cooperating with this sort of thing. Is there anything that state bars or Social Security could do about this? One thing I can suggest is to allow claimants to switch attorneys freely. The fee agreement process impedes this. Claimants who wish to switch attorneys have a hard time finding anyone to represent them, since current rules mean that the case becomes a fee petition case once a claimant switches attorneys unless the first attorney waives a fee. Attorneys do not like to fool with fee petition cases, so they do not want to get involved with claimants who want to switch attorneys. Clients of these out of state firms are often unhappy and want to switch attorneys, but find it almost impossible to do so.

With Friends Like These ...

From the abstract for Disability Rights, Disability Discrimination, and Social Insurance by Mark Weber of the DePaul University College of Law, published in the Georgia State University Law Review:

This paper asks whether statutory social insurance programs, which provide contributory tax-based income support to people with disabilities, are compatible with the disability rights movement's ideas. Central to the movement that led to the Americans with Disabilities Act is the insight that physical or mental conditions do not disable; barriers created by the environment or by social attitudes keep persons with physical or mental differences from participating in society as equals. ...

But the civil rights approach to disability posits that disability is not a risk, not tragedy, and not a damage or defect. Instead it is a maladaptation of society to human variation. ...

This paper argues that a justification remains for social insurance under the civil rights approach to disability, and further suggests that expansion of social insurance for disability is both compatible with disability rights principles and supported by wise public policy.

Note that Professor Weber is arguing against the nutty position that there is no one who is unable to work due to illness, that in every case the supposed inability to work is due to discrimination.

One Week To Go

The deadline to send in comments on the proposed new rules on representation of Social Security claimants is a week from today, November 7. Thus far, there have been few comments and most of the comments that have been filed have little weight.

If you represent Social Security claimants, I urge you to study this proposal and submit comments. Comments may be submitted online, by fax to 410-966-2830 or by letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, MD 21235-7703.

By the way, I notice that there are also outstanding proposed regulations regarding representation before the Patent and Trademark Office and the Executive Office for Immigration Review. This must be coincidental.

Happy Halloween!

Opening A Can Of Worms

I posted earlier about the problems I see with Commissioner Astrue's Compassionate Allowance program. One of the issues I raised was why this did not include other diseases, such as metastatic prostate cancer.

Here it comes. David E of Overland Park Kansas is already agitating in his "The Big C" blog over the omission of advanced prostate cancer, in a post he labels "Outraged!!"

Frequently Asked Questions

Many thanks to everyone who commented on my draft list of Frequently Asked Questions (FAQs) about Social Security disability. Those comments helped me make these FAQs better. I have finalized the FAQs and posted them on the separate Social Security Perspectives blog.

You are free to link to these FAQs. You need not ask my permission to link. You may not simply copy the FAQs and use them elsewhere, with or without attribution, unless you get my permission. Copying them and using them elsewhere, whether online or offline, is copyright infringement. which is illegal

AALJ Letter On Staffing

From the Association of Administrative Law Judges (AALJ), a union that represents many of Social Security's Administrative Law Judges:

October 27, 2008

An open letter to:

Hon. Michael J. Astrue
Commissioner, Social Security Administration
6401 Security Boulevard, Altmeyer Building
Baltimore MD 21235

Dear Commissioner Astrue,

In the large volume of materials published by the Agency on its efforts to reduce the disability claims backlog, there has been no statement yet of any expectation regarding support staff levels. Of course we all understand that the Agency cannot publish any projection of staff levels without knowing what the budget will be. It would be unreasonable to expect any projection.

Nonetheless in most of those materials there are repeated reports that the administrative law judges have been asked to produce 500-700 decisions per year. Some of these have been quotations of you, Associate Commissioner deSoto or Chief Administrative Law Judge Cristaudo.

In recent reports the GAO and SSA’s OIG have confirmed what we have all known for years: there is a clear relationship between the level of support staff in hearing offices and the productivity of the judges.

We believe it is misleading to repeatedly state that the judges are being asked to produce some fixed number of decisions without any projection of the level of support staff or any acknowledgement that judges’ productivity is dependent upon the level of support staff and other resources. We are very concerned that readers of the Agency’s materials, including members of Congress, may come away with the impression that the unqualified request being made of the judges is a reasonable one.

We are also concerned that reiterating the request to produce 500-700 decisions per year with no acknowledgement that the future level of support is an unknown, sets up the corps of judges for failure. If we do not produce still more decisions as requested we will be perceived to have failed, never mind that we will almost certainly have fewer actual support staff per judge than we had last year.

We therefore specifically request, whenever the Agency states that the judges are being asked to produce some given number of decisions, it acknowledges the relationship between judge productivity and adequate resources.

We told you when you first took office that the AALJ wants to do all we can to assist the Agency in meeting our common goals, providing full and fair hearings and issuing legally defensible decisions. We are still committed to that principle.

We would be irresponsible to ask the judges to commit to try to achieve any specific numerical goal without tying it to the level of quantity and quality of future support staff and other resources such as shortages of vocational experts and medical experts, judges not receiving enough worked case files to fill their schedules, trying to work with unorganized so called “streamlined cases”, working with efiles which are still slower to review and shortages of decision writers.

Commissioner, we cannot tell you whether or not our judges will be able to achieve the Agency’s goals. We can tell you they will do what they have always done; they will do their best.

Sincerely,



Ronald G. Bernoski
President
Association of Administrative Law Judges