Unanimous SCOTUS Opinion In Culbertson — Claimant’s Attorney Wins

     The syllabus of today’s unanimous Supreme Court opinion in Culbertson v. Berryhill:

The Social Security Act regulates the fees that attorneys may charge claimants seeking Title II benefits for representation both before the Social Security Administration and in federal court. For representa- tion in administrative proceedings, the Act provides two ways to de- termine fees. If a fee agreement exists, fees are capped at the lesser of 25% of past-due benefits or a set dollar amount—currently $6,000. 42 U. S. C. §406(a)(2)(A). Absent an agreement, the agency may set any “reasonable” fee. §406(a)(1). In either case, the agency is re- quired to withhold up to 25% of past-due benefits for direct payment of any fee. §406(a)(4). For representation in court proceedings, fees are capped at 25% of past-due benefits, and the agency has authority to withhold such benefits to pay these fees. §406(b)(1)(A). 

Petitioner Culbertson represented Katrina Wood in Social Security disability benefit proceedings before the agency and in District Court. The agency ultimately awarded Wood past-due benefits, withheld 25% of those benefits to pay any attorney’s fees, and awarded Culbertson fees under §406(a) for representation before the agency. Cul- bertson then moved for a separate fee award under §406(b) for the court proceedings, requesting a full 25% of past-due benefits. The District Court granted the request, but only in part, because Culbertson did not subtract the amount he had already received under §406(a) for his agency-level representation. The Eleventh Circuit af- firmed, holding that the 25% limit under §406(b) applies to the total fees awarded under both §§406(a) and (b). 

Held: Section 406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§406(a) and (b). Pp. 5–9. 

(a) Section 406(b) provides that a court rendering a favorable judgment to a claimant “represented before the court by an attorney” may award “a reasonable fee for such representation, not in excess of 25 percent” of past-due benefits. Here, the adjective “such,” which means “[o]f the kind or degree already described or implied,” refers to the only form of representation “already described” in §406(b)—i.e., “represent[ation] before the court.” Thus, the 25% cap applies only to fees for representation before the court, not the agency. 

Subsections (a) and (b) address different stages of the representa- tion and use different methods for calculating fees. Given this statutory structure, applying §406(b)’s 25% cap on court-stage fees to §406(a) agency-stage fees, or the aggregate of §§406(a) and (b) fees, would make little sense. For example, such a reading would subject §406(a)(1)’s reasonableness limitation to §406(b)’s 25% cap—a limitation not included in the relevant provision of the statute. Had Congress wanted agency-stage fees to be capped at 25%, it presumably would have said so directly in subsection (a). Pp. 5–7. 

(b) The fact that the agency presently withholds a single pool of 25% of past-due benefits for direct payment of agency and court fees does not support an aggregate reading. The statutory text provides for two pools of money for direct payment of fees. See §§406(a)(4), (b)(1)(A). The agency’s choice to withhold only one pool of 25% of past-due benefits does not alter this text. More fundamentally, the amount of past-due benefits that the agency can withhold for direct payment does not delimit the amount of fees that can be approved for representation before the agency or the court. Pp. 7–9. 

861 F. 3d 1197, reversed and remanded.

Going After The Undocumented In Another Way

     From the Pacific Standard:

The Social Security Administration is planning to pore through wage and tax statements and notify employers when employee names and Social Security numbers are not identified in their records in what appears to be the Trump administration's latest push to target undocumented Americans in the workplace.  

The SSA announced in a recent post on its website that, in the spring of 2019, it would begin to send Employer Correction Request Notices to employers of people whose names and Social Security numbers do not match those in its system. ... 

Previous administrations have sent out such letters before, but were "temporarily halted during litigation and congressional inquiry because it was wrongfully used as a method of immigration enforcement that was found to hurt workers and employers alike, regardless of immigration status," says Sasha Feldstein, policy analyst at the California Immigrant Policy Center. 

"The resurgence of this policy after it was found to be wrongfully used and ineffective is just another example of the administration's attempt to exploit workers." ...

It’s Not Just Tennessee

     The Tennessean has a long report on the use of contract physicians to review — and mostly deny — Social Security disability claims. They’re paid per case and make hundreds of thousands of dollars a year often spending only a few minutes on each case. At least two of the Tennessee contract physicians have a history of felony convictions. Another has had his medical license revoked twice in the last 20 years. Another physician who complained about contract physician usage was retaliated against.

     In related news the Tennessean reports on the terrible backlogs that Social Security Disability claimants face when they appeal one of the decisions based upon such a flawed process.

People With Cystic Fibrosis Apparently Being Targeted By Social Security

     CBS reports on Social Security  cutting off disability benefits to one young woman suffering from cystic fibrosis. Note that people involved in helping those with cystic fibrosis report that this is not an isolated case, that they’ve seen many similar cases lately. 

     I’ve seen this sort of thing many times over the years. Suddenly, I start seeing a run of clients with a particular disorder. I can remember seeing cystic fibrosis cases quite a few years ago but not recently. Mostly, what I see now is multiple sclerosis cases. It’s not that there are suddenly more people with cystic fibrosis or multiple sclerosis. It’s that Social Security has suddenly started turning down or cutting off disability benefits to people suffering from these disorders. There’s been no announcement, no public discussion of the change. The decision is made in private and almost certainly doesn’t involve really high level people. Congress isn’t consulted. It’s never written down.  It’s all done through QA, Quality Assurance. Suddenly, whenever Disability Determination tries to put a claimant on benefits for a particular medical problem, the case gets sent back. Perhaps, since this case is a termination, Social Security has decided, ultra quietly, to target people with cystic fibrosis who are already on benefits for full medical reviews. Once the personnel involved in making disability determinations receive a few such cases back and notice the targeting of those already on benefits they get the picture and start denying the claims and cutting off benefits. Social Security doesn’t have to take responsibility for what it’s doing because it’s all hidden away in individual claimant files which are not available to the public.

Gipping People Out Of All They’re Due

     From a recent report from Social Security’s Office of Inspector General:

From 1 segment of the Master Beneficiary Record, we identified 13,825 primary beneficiaries who submitted their applications for DIB [Disability Insurance Benefits] in FYs [Fiscal Years] 2015 and 2016, received a DIB allowance, and had a prior period of DIB or were previously denied DIB. From this population, we reviewed a random sample of 200 beneficiaries to determine whether their DIB entitlement dates were accurate. 

SSA [Social Security Adminstration] employees did not accurately establish DIB entitlement dates for 23 (12 percent) of our 200 sampled beneficiaries. Employees established incorrect entitlement dates because they did not accurately evaluate all relevant evidence, appropriately identify retroactive entitlement based on prior filings, or correctly calculate one beneficiary’s insured period. As a result, we identified improper payments of $373,906 related to 23 beneficiaries ($291,076 in underpayments to 20 beneficiaries and $82,830 in overpayments to 3 beneficiaries).... 

“[W]e project SSA established incorrect entitlement dates that resulted in almost $657 million in DIB and SSI improper payments. After we offset the improper DIB and SSI payments, the financial impact to the sampled beneficiaries was $272,833. Therefore, we project the resulting financial impact to beneficiaries was about $377 million. ...

     Please note that OIG is saying that far more people are being underpaid than overpaid.

I Thought He Was Still Interested In Becoming President

     Former Vice President Joe Biden expressed interest in means testing Social Security and Medicare  a few months ago.

     Democrats have long been opposed to means testing either. Means testing would put the programs in the widely despised category of “welfare.” There’s a reason Democrats always refer to them as “social insurance.”

     A few weeks ago some unknown jackass keyed my car for God knows what reason. My insurance company is paying for the repair. They didn’t inquire whether I could actually afford to make the repair without their help. No, I had paid my premiums so they pay for the repair. Do we want it any different for Social Security? If my insurance company was inquiring about whether I could afford to make repairs without their help, I’d feel very different about paying their premiums. That’s what  Republicans want.

Get Publicity For Your Case, Get A Call At The Dinner Hour Telling You That Your Problem Has Been Fixed

     From the Washington Times:

Two sisters faced with repaying the federal government $100,000 after their “dead” father turned up alive — 47 years later — received some welcome news in the waning hours of 2018. 

Lynne Grensted Thurston, 61, said a Social Security Administration agent notified her Monday that her share of the bill and the share owed by her sister, 63-year-old Beth Grensted, had been forgiven. 

We were already sitting down to dinner, and she [the agent] called to say she was leaving the office, but, ‘I wanted to let you know that the decision has been made,’” Mrs. Thurston told The Washington Times. “‘It’s completely erased for you and your sister.’” ... 

In June 2016, the sisters were hit with a bombshell: Their father, Douglas Grensted, who had been declared legally dead after disappearing on a hunting trip in 1968, actually had faked his death to run off with his mistress to Arizona. He died there in December 2015. Not only that, but the SSA ordered the sisters and their mother to repay about $100,000 in survivors’ benefits. Mrs. Thurston, who was 11 when her father vanished, was billed about $12,000; her sister Beth, who was 13, owed $10,000, and their mother, Barbara Grensted, received a bill for $87,000. ...

     This family deserved the relief but so do many others who don’t get relief or only get it after a long delay.  The difference is that this family got media attention. It didn’t hurt them that the attention came from a right wing source.

Initial And Reconsideration Allowance Rates -- FY 2018

     Below is a Social Security report on allowance rates at the initial and reconsideration levels on disability claims in Fiscal Year (FY) 2018, which ended on September 30, 2018. Click on each page to view full size. This appeared in the most recent issue of the newsletter (not available online) of the National Organization of Social Security Claimants Representatives (NOSSCR).

     I live in North Carolina. Why is it that the initial allowance rate is 29.2% in North Carolina but 42.1% in neighboring Virginia? For that matter, why is the allowance rate 51.5% in New Hampshire but only 25.3% in Mississippi? Don't tell me the demographic differences are that great. I thought this was a national program.