Proposed Rules On Attorney Regulation Withdrawn

     The Social Security Administration has withdrawn its set of proposed final regulations on Revisions to Rules of Conduct and Standards of Responsibility for Appointed Representatives from review by the Office of Management and Budget. This does not mean that this proposal is dead. It can be resubmitted by Social Security after the change of administration, with or without change.

Attorney Fees Hold Steady

     Social Security has posted its final numbers on fees paid to attorneys and others for representing Social Security claimants in 2016. The total was $1.093 billion, down only slightly from $1.094 billion in 2015. Fees are down $336 million, or 23%, from the peak in 2010.

     All attorneys who practice Social Security law face considerable economic pressure. The attorney fee provisions of the Social Security Act were designed to allow claimants to have representation. This right could be effectively eliminated over coming years unless something changes. One important way that the Acting Commissioner of Social Security could assure that claimants don't lose their right to representation is to increase the cap on Social Security attorney fees. It's currently $6,000. The Social Security Act allows the Acting Commissioner to raise this to adjust for inflation but does not require that she do so. If adjusted for inflation, the cap would now be over $7,000. It's past time to raise the cap.

     Every time I write about attorney fees, I get the response from some Social Security employees that attorneys who represent claimants are lazy, that they do nothing for the money they're paid. Those who would post this need to ask themselves the question "If representing Social Security claimants is such easy money, why don't I leave my job with the agency and jump on this gravy train?" After all, who goes to law school with the intention of never representing a real live client? Get out there and show the world how it should be done!

     Social Security employs thousands of attorneys but hardly a one of them has left Social Security to represent Social Security claimants in recent years. What does that tell you?

     And by the way, when I post about attorney fees I usually get responses from some Administrative Law Judges that go something like "When I was in private practice, I spent hundreds of hours doing depositions and meeting with my client and other witnesses in each individual case. Social Security attorneys don't do anything like that so they're worthless." Those who post this tend to forget that they or their firms were being paid tens if not hundreds of thousands of dollars a case. You try spending hundreds of hours on each Social Security case when the total possible fee is no more than $6,000 and see how long you last. The challenge in representing Social Security claimants is doing a professional job when economics require you to represent lots of clients. Give it a try and find out for yourself just how easy that is.

Attorney User Fee Remains At 6.3% -- How About Liens Instead?

     The fee paid by attorneys and others who receive direct payment of fees for representing Social Security claimants will remain at 6.3% of the fee in 2017 subject to a $91 cap per case. Social Security says this is their actual costs. Those of us who represent Social Security claimants feel this is absurd, that the agency's true costs are vastly less, and that the fee is nothing more than a thinly disguised tax.

     By the way, whenever I post about fees, I get the response that "real attorneys" collect their fees directly from their clients. That's bunk. There are three basic ways that attorneys collect fees. One is to collect the entire fee up front. A second is to bill clients on a pay as you go basis. This works only when you're representing corporations or wealthy individuals. If the client stops paying, the attorney withdraws from the case. Neither requiring payment up front or on a pay as you go basis is practical in Social Security cases because the claimants are usually too poor. The third way is contingent fees. The attorney takes a portion of the settlement or award if the client ultimately receives one. In such cases, the attorney has a lien on the settlement or award. The client cannot avoid paying up. However, the Social Security Act prohibits most liens on benefits. Those who would want to repeal attorney fee withholding without allowing an attorney a lien on back benefits aren't trying to make attorneys collect their fees like "real attorneys." Those "real attorneys" who represent claimants on a contingent fee basis have a lien giving them an assurance of receiving a fee. If you want to repeal withholding but give me the same lien as "real attorneys" have when they represent clients on a contingent fee basis, I'm with you. How about it? Also, by the way, I'm not aware of any other situation where attorneys have to pay a fee for their lien on a settlement or award.

Johnson To Retire From Congress At End Of 2018

     Congressman Sam Johnson, who has been Chairman of the House Social Security Subcommittee, has announced that he is retiring from Congress at the end of 2018. He is 86 years old. I expect he will remain Chairman of the House Social Security a Subcommittee for this Congress.

No Announcement Of Colvin Resignation

     Probably there's nothing to make of it but there's been no announcement that Acting Social Security Commissioner Carolyn Colvin is resigning. There had been several reports that she was not planning to stay in her job into the next administration. It's only two weeks to inauguration day. If she has already resigned effective on some day in the future, I would expect an announcements from Social Security and a press release from the White House thanking her for her service.

     Colvin's term as Deputy Commissioner of Social Security ended some time ago but the law allows her to continue in office until a successor is confirmed. She can also stay as Acting Commissioner until a new Commissioner is confirmed unless the new President designates someone else to be Acting Commissioner.

Regulations On Evaluation Of Medical Evidence Advance

     The Office of Management and Budget (OMB) has cleared Social Security's proposed final regulations on evaluation of medical evidence. Here is the agency's summary of the regulations:

We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to evidence, revising our list of acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising who can be a medical consultant (MC) and psychological consultant (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These proposed revisions would conform our rules with the requirements of the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive primary medical care, simplify and reorganize our rules to make them easier to understand and apply, allow us to continue to make accurate and consistent decisions, and emphasize the need for objective medical evidence in disability and blindness claims.

      These may now be published in the Federal Register. However, the Administrative Procedure Act provides that the regulations cannot come into effect for at least 30 days after publication. There will be a new President by then. We do not know for sure what the new President will do but it's a good bet that all regulations which have been approved but which have not yet come into effect will be put on hold pending review by the new administration and that review may not be complete until there's a new Commissioner. It's not that these new regulations are likely to be unpopular with the new administration but it may still take months before they come into effect and they might be modified. But, then again, who knows what to expect out of the Trump Administration?

EAJA Payments Escalating Rapidly

     When Social Security issues a final administrative decision denying disability benefits, a claimant may bring a civil action in United States District Court to appeal from the decision. If the claimant prevails in federal court and the court determines that Social Security's position wasn't "substantially justified" the court can order the Social Security Administration to pay attorney fees under the Equal Access to Justice Act (EAJA). As you can see below, Social Security's EAJA payments have been escalating rapidly in recent years.

Fiscal Year	Total Payments
2010	$19,743,189.12
2011	$21,668,646.47
2012	$24,666,171.13
2013	$27,720,951.87
2014	$31,637,462.36
2015	$38,132,381.48
2016	$40,045,962.42

     I think there are at least three factors causing this. Social Security's Administrative Law Judges are turning down more claimants than in the past. Social Security is more willing to defend weak denial decisions than in the past. The courts became less conservative as a result of President Obama's appointments.

An Inconsistency?

     Social Security's Listings for systemic lupus erythematosus, systemic vasculits, systemic sclerosis, polymyositis, dermatositis, undifferentiated and mixed connective tissue disease, innume deficiency diseases apart from HIV/AIDS, HIV/AIDS, inflammatory arthritis, and Sjögren’s syndrome all contain the following criteria

  ... one of the following at the marked level:

1. Limitation of activities of daily living.

2. Limitation in maintaining social functioning.

3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.

     This language is also part of the current mental impairment Listings but those Listings will be replaced by new criteria in a couple of weeks and that language isn't in the new mental impairment Listings. Did Social Security mean to leave the old criteria in place for these rheumatic disorders or did they just miss it? I'm thinking the former since they did alter similar child's rheumatic disorder Listings to track with the new child mental impairment Listings but I don't know. I'm not sure that it matters that much since I've seen no sign that Social Security is paying attention to the mental effects of rheumatic disorders, regardless of the Listings.