9th Circuit Says Supreme Court Meant What It Said In Gisbrecht

From the opinion of the 9th Circuit Court of Appeals in Crawford v. Astrue, released today:

We review three consolidated appeals that present one overarching issue: Did the district court follow the mandate of Gisbrecht v. Barnhart, 535 U.S. 789 (2002), in determining the amount of attorneys’ fees awarded to lawyers who successfully represented Social Security disability insurance (“SSDI”) claimants in federal court under contingent-fee contracts? We hold in each case that it did not. We vacate the district courts’ orders and grant the attorneys the contingencybased fees they requested. ...

By beginning with the lodestar calculation, the district courts plainly failed to respect the “primacy of lawful attorney-client fee agreements.” Gisbrecht, 535 U.S. at 793. ...

These cases vividly demonstrate the deleterious effect of a district court’s failure to recognize the distinction between fee-shifting cases and cases involving payment by the claimant from his benefit award. ...

The district court orders quote extensively from Gisbrecht. They even cursorily discuss the character of the representation—noting that it was skillful and not dilatory—before concluding that the requested fee would represent a windfall to the attorneys. But this parroting of language from Gisbrecht does not mean that the district courts actually applied its teachings.

There have been a lot of District Courts around the country that have done what the Court of Appeals condemned in this case.

Some Clues?

Some time ago Social Security published a Notice of Proposed Rule-Making (NPRM) on entities as representatives of claimants. The NPRM was confused, particularly when it came to definitions, because Social Security had not thought through the issues. The agency has promised final regulations by February 2010. A recent issuance in Social Security's Program Operations Manual Series (POMS) may suggest where the agency is heading since it provides definitions for terms such as "advocacy services", "entity", "representative" and "representational services", but I have to say that I cannot tell much from it. Maybe you can.

Isn't PR Great

From what amounts to an ad for Allsup, Inc. that got published in the Salt Lake Tribune:

As the worst recession since the Great Depression appears to be ending, the Social Security Administration grapples with an unprecedented flood of disability applications due to aging baby-boomers and heavy job losses.

Pending claims are expected to jump 70 percent this year, said Dan Allsup, spokesman for Illinois-based Allsup Inc., which represents people applying for disability payments.

"We've seen a tremendous spike in our disability applications," [Social Security spokesperson Mark] Lassiter said, noting that a year ago, 2.6 million claims were forecast and 3 million were filed.

"This year we're expecting 3.3 million," he said. ...

"It's a much more complicated and lengthy process than filing taxes," Allsup said. "And that's a primary reason that SSA denies two-thirds of applications due to poor preparation of the forms."

Even so, Allsup Inc. also rejects two-thirds of those who seek its assistance -- but for different reasons, he said.

"We work on a contingency basis," Allsup said, 25 percent, up to $5,300, of the back payments awarded to applicants. "So for obvious reasons, we won't accept a fraudulent claim or one that we know won't be awarded."

About 98 percent of their accepted clients do ultimately gain government approval, Allsup added.

A Warning On The ALJ Register

As I reported last week, the Administrative Law Judge (ALJ) register will reopen in the near future. This means the federal government will soon start taking applications to become ALJs. The register is likely to stay open only a day or two. Those who want to apply will have to act quickly. There will be no advance notice on exactly when the register will open. It might open today or maybe it will not open for another week or two. If you fail to get your application filed in time, you will have to wait until the register reopens and who knows when that will be.

My warning is that I am very tied up with hearings this week, many of them out of town. If you want to apply for an ALJ job, please do not rely upon this blog to give you prompt notice that the ALJ register has opened. Check for yourself on USA Jobs and do so frequently. You will not have long to act once it does reopen.

Union Newsletter

Council 220 of the American Federation of Government Employees (AFGE), the labor union that represents most Social Security employees, has released its October newsletter. Here is an excerpt from one article in the newsletter:

While members of the bargaining unit were processing claims and dealing with a sometimes irate public, an estimated 700 management officials from Social Security were recently treated to a three-day extravaganza at the Arizona Biltmore. ...

One office in the San Francisco Bay Area posted a sign while its management officials were attending the “Tango” in Phoenix. That sign told the public Immediate Payments would not be available for several days (because no one was there to authorize them).

“Informing impoverished members of the public that SSA can’t issue them emergency payments because management is partying at a lavish Arizona hotel is outrageous,” [union leader Witold] Skwierczynski said. “

Happy Halloween

Congressman Criticizes Fugitive Felon Settlement

From the American Chronicle:

Congressman Wally Herger (R-CA) released a copy of a letter he and two other Representatives sent to the Social Security Inspector General on the issue of fugitive felons receiving Social Security and Supplemental Security Income (SSI) benefits. Herger believes it to be an irresponsible waste of taxpayer dollars to subsidize felons on the run from the law. Congressman Herger was the author of provisions in the 1996 welfare reform law that sought to deny fugitive felons, along with probation and parole violators, SSI checks. Subsequent legislation expanded that ban to include Social Security checks.

Herger´s letter is in response to a recent report by the Inspector General of the Social Security Administration (SSA) regarding a court settlement (Martinez, et al. v. Astrue) that will alter the Social Security Administration´s implementation of the ban on benefits for fugitive felons. The settlement stipulated that SSA could suspend Social Security and SSI payments only after fugitive felons are issued a warrant for trying to escape arrest, overturning SSA´s interpretation that payment suspensions are based solely on any outstanding felony arrest warrant. The Inspector General´s (IG) Report found that, under Martinez, taxpayer savings from the program would be reduced dramatically. ...

[Herger wrote] "While the court cases have shed light on problems with the implementation of the program, the Martinez settlement is too broad and would unnecessarily neuter this successful program. I believe the correct solution is for Congress to clarify that the Social Security Administration should suspend payments for those wanted based on the most heinous crimes, while permitting lenience in cases where good cause exemptions make sense.

Flu As A Reason To Do Business With Social Security Online

A press release from Social Security:

Michael J. Astrue, Commissioner of Social Security, today announced that Academy Award winner Patty Duke and David Kessler, M.D., former head of the U.S. Food and Drug Administration, have teamed with Social Security to launch a flu prevention public service campaign. Ms. Duke and Dr. Kessler are featured in a new public service announcement letting people know some simple steps they can take to prevent the spread of the flu, as well as the fact that most business with Social Security can be done online by visiting www.socialsecurity.gov.

“President Obama recently declared a flu emergency and we want to be sure that Americans looking to Social Security for critical services don’t underestimate the value of the simple but important steps they can take to help protect themselves and others from the flu,” Commissioner Astrue said. “They should also know if they need to do business with Social Security but don’t want to visit an office, they can always go online to www.socialsecurity.gov.”

Social Security’s online services, led by the agency’s Retirement Estimator, online retirement application, and Medicare Extra Help application, have consistently ranked at the top of all government electronic services in the American Customer Satisfaction Index (ACSI) E-Government Satisfaction Index. The most recent ACSI report released on October 27, 2009 notes that citizen satisfaction with federal government websites surged to a new all-time high in the third quarter of 2009 and some of Social Security’s online services surpass those of private sector stalwarts like Netflix and Amazon.

“Patty Duke and Dr. Kessler are doing a great service to the country by volunteering their services to help us get the word out about flu prevention and our online services,” said Commissioner Astrue. “I encourage all Americans to do everything they can during this flu season to keep themselves, their families, and their neighbors healthy.”

For more information about Social Security’s online services and to view the new public service announcement featuring Patty Duke and Dr. David Kessler, go to www.socialsecurity.gov.