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  1. page Home edited Social Security Law Wiki The wikispaces.com platform is shutting down at the end of July 2018. …

    Social Security Law Wiki
    The wikispaces.com platform is shutting down at the end of July 2018. The reference material that has been held here is currently being recast as a series of Social Security Law Guides. The first are now available at: http://access-to-law.com/socsec
    This reference work and accompanying on-line resources cover issues of entitlement and benefit calculation arising out of the set of programs popularly referred to as Social Security. These programs touch the lives of well over 90 percent of all persons living or working in the United States and provide critical income to those who have retired or ceased working due to severe physical or mental disability. They also provide income to other members of a worker's family when the worker has retired, become disabled, or died. The law directing these payments and setting their amount is complicated. Questions about proper application of this law are raised in hundreds of thousands of administrative hearings and close to twenty thousand federal court proceedings each year. This collection of materials is assembled to assist those who must resolve questions of Social Security law as judges, those who represent individuals and families seeking Social Security benefits, and individuals, family members, and organizations seeking a clearer understanding of the law that directs the distribution of hundreds of billions of dollars each year. Since these benefits are centrally important to individuals at critical points in their lives, understanding under what circumstances they are available and how large the payments will be is vital information for planning and making decisions about other forms of savings or insurance or even about entering into or ending family relationships.
    Currently (November 2017) this reference work is undergoing a major restructuring. Revised and updated sections are available via the "Table of Contents (New Version)". Until that revision is complete, the prior version will continue to be the target of the regular "Table of Contents" link.
    Introduction
    How to use this wiki
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Monday, January 22

  1. page Fees for Representation Awarded Under Social Security Act edited [last revised: 11/2017] § 12-100§ 12-100. Overview The Act allows claimant representation in a…
    [last revised: 11/2017]
    §12-100§ 12-100. Overview
    The Act allows claimant representation in all dealings with the Social Security Administration (SSA) by a broad range of qualified persons, not requiring that they be attorneys. It also provides that fees for such representation are subject to SSA review and approval. No fee may be charged without the agency's approval. This is true whether or not funds are withheld and whether or not the decision is favorable. The regulations do, however, provide for exceptions when the fee will be paid by an insurance company, nonprofit organization, or government agency with the claimant having no liability to pay any part of it. They also exempt fees sought by legal guardians or court-appointed representatives that have already been authorized by a court.
    Fees for representation before a court reviewing an SSA determination, where the representative must be an attorney, are subject to approval by the court. Fees that the Agency or a court approves for payment to an attorney or qualifying non-attorney representative are withheld and paid from any award of past due benefits up to 25% of those benefits. Prior to 2004, the Social Security Act authorized the agency to withhold 25% of a claimant's past due benefits and make payment of fees awarded for representation before the agency directly to the representative. However, this authority was limited to attorney representatives and did not extend to SSI benefits. In 2004, Congress established a 5-year test that extended it to certain qualifying non-attorney representatives and to SSI claims, and in 2010 those two extensions were made permanent.
    In 2011, the Agency laid the foundation for requiring representatives who want direct payment of their fees out of past due benefits to use its electronic services for exchanging information and documents. The new rule states that a representative must "conduct business with [the Agency] electronically at the times and in the manner which [it] prescribe[s] on matters for which the representative requests direct fee payment." See 76 Fed. Reg. 56,107(Sept. 12, 2011) (codified at 20 C.F.R. § 404.1713). In 2012, it followed up with a requirement that as of March 16, 2012, in disability cases all representatives requesting direct fee payment must file requests for reconsideration or for an ALJ hearing using its web portal. See 77 Fed. Reg. 4654 (Jan. 31, 2012); 77 Fed. Ref. 13,968 (March 8, 2012).
    Representation is, in other respects, subject to Agency oversight and regulation. It has promulgated rules of conduct and standards of responsibility that apply to attorney and non-attorney representatives and has the authority to refuse to recognize, disqualify or suspend a representative for failure to adhere to them. See Harry v. Colvin, 819 F. 3d 112 (5th Cir. 2016).
    §12-200§ 12-200. Fees
    While the Act provides for a fee award, to be paid out of benefits for representation before the Agency, it places the determination of an appropriate award in the Agency. A 1990 amendment to the Social Security Act created a second procedure for approving attorneys fees paid out of past due benefits resulting from an administrative appeal. Fees agreed to by the claimant will generally be approved so long as they do not exceed 25% or a set dollar amount, initially established by the Act at $4,000. In 2002, the Agency increased that figure to $5,300. In 2009 it became $6,000. The Act also provides that the attorneys fee calculation occurs prior to operation of the SSI offset.
    In situations where relief other than past due benefits is sought or the fixed dollar cap is too low or the fee agreement fails in some other respect to meet the statutory requirements, the representative can still petition the Agency for approval of a "reasonable fee."
    ...
    Prior to 2004, the Social Security Act authorized the Agency to withhold 25% of a claimant's past due benefits and make payment of fees awarded for representation before the agency directly to the representative. However, this authority was limited to attorney representatives and did not extend to SSI benefits. In 2004, Congress established a 5-year test that extended it to certain qualifying non-attorney representatives and to SSI claims. Subsequently, the Social Security Disability Applicants' Access to Professional Representation Act of 2010 (Pub. L. No. 111-142) made these provisions permanent.
    In 2011, the Agency laid the foundation for requiring representatives who want direct payment of their fees out of past due benefits to use its electronic services for exchanging information and documents. The new rule states that a representative must "conduct business with [the Agency] electronically at the times and in the manner which [it] prescribe[s] on matters for which the representative requests direct fee payment." See 76 Fed. Reg. 56,107(Sept. 12, 2011) (codified at 20 C.F.R. § 404.1713). In 2012, it followed up with a requirement that as of March 16, 2012, in disability cases all representatives requesting direct fee payment must file requests for reconsideration or for an ALJ hearing using its web portal. See 77 Fed. Reg. 4654 (Jan. 31, 2012); 77 Fed. Ref. 13,968 (March 8, 2012).
    §12-300§ 12-300. Fees
    ...
    Federal Court
    §

    12-310§
    12-310. Awarded
    Whenever a court renders a judgment favorable to a claimant under Title II or Title XVI of the Social Security Act and the claimant was represented before the court by an attorney, the court may allow as part of its judgment a reasonable attorneys fee. That fee may not exceed 25 percent of the total of the past-due benefits resulting from the judgment and is paid out of those benefits. U.S. Court of Appeals circuits are split over whether the 25 percent limit applies only to fees awarded for federal court work or whether it limits all fees for representing a claimant, including those for representation before the Agency. Prior to the 2004 amendments, fees for SSI representation were not paid out of benefits. In Hopkins v. Cohen, 390 U.S. 530 (1968), the Supreme Court construed the Act's ceiling on attorney's fees, set at 25% of past-due benefits, as including not only the claimant's benefits but those of other family members as well. Since most favorable court decisions produce a remand to SSA, the amount of the ultimate award and, indeed, whether there will be one remain uncertain until the agency has completed its action. Only at that later point will a petition for fees under 42 U.S.C. § 406(b) be timely.
    In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court resolved a prior split among the U.S. Court of Appeals circuits over the proper approach to determining the reasonableness of attorneys fees claimed under the Act for representation in court. Under Gisbrecht rejected the approach of a majority of the U.S. Court of Appeals circuits. Under the "lodestar" approach, these circuits had focused almost exclusively on the reasonable hourly rate for work of this type and the number of hours required for the representation. Those that followed this approach give little or even no explicit recognition to the contingent fee agreement the claimant had signed, under which there would be no fee without the award of benefits. Under Gisbrecht the reasonableness determination begins with the contingent fee agreement rather than a baseline hourly rate (the "lodestar" method). Nonetheless, the decision requires that the attorney demonstrate the reasonableness of that fee. Factors warranting a reduction include poor quality representation or a fee that is excessive in relation to the time spent on the case.
    §12-320§ 12-320. Treatment
    Prior to the 2004 amendments attorney fees for representing Supplemental Security Income (SSI) claimants could not be withheld from past due benefits. Because of this fundamental difference between the two programs, the offset rules affected the amount of attorney fees payable in concurrent SSI and OASDI cases.
    §12-330§ 12-330. Importance
    Unlike fees awarded under the Social Security Act, those available under the Equal Access to Justice Act (EAJA) are not deducted from the claimant's recovery. In addition they are available following a court remand that may or may not yield benefits for the claimant. If and when the remand yields benefits, the award of fees under the Social Security Act (which will usually be a larger amount) will not be on top of EAJA fees. Instead, the attorney will be required to pay the smaller of the two awards over to the claimant.
    §12-340§ 12-340. Applicability
    Since class actions often focus on prospective or injunctive relief they may present little basis for a fee award under the Act. The Act's provision for an award of up to 25% of past due benefits resulting from successful representation may, of course, in a class action yielding such relief permit an award. Because of the awkwardness of the Act's fee provisions in class actions, the Equal Access to Justice Act (EAJA) is especially important to attorneys involved in such litigation.
    -Authorities-
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  2. page Disability Determinations and Appeals edited [last revised: 11/2017] Introduction 8-010§ 8-010. Introduction Since the Disability Insurance…
    [last revised: 11/2017]
    Introduction8-010§ 8-010. Introduction
    Since the Disability Insurance (DI) program was added to Social Security in 1956, claims for Social Security benefits based on an asserted medically determinable condition causing a long-term inability to work have challenged an adjudicatory process originally designed for resolving issues of age, earnings, employment, and family relationship. Congress, through subsequent amendments, and the administering federal agency, through a long history of regulatory elaboration of the critical standard and adjustments to the procedures for applying it, have sought to bring greater consistency, accuracy, and fairness to decisions about who qualifies for this component of Social Security. When Congress created the Supplemental Security Income program (SSI) for low-income individuals in 1972, it loaded this complementary need-tested program onto the same disability definition, the same agency, and the same adjudicatory process. That added a population of individuals many of whom had no past employment record to serve as a benchmark to the disability determination puzzle. Among others these included children and also adults who had survived on sources of income of which there was no trace on the records of the IRS or Social Security Administration.
    In 2017, sixty-one years on (forty-five in the case of SSI), consistent application of a coherent definition of disability across the nation and through the multiple stages of claim consideration remains an elusive goal. The administrative and judicial effort expended in adjudicating these claims is immense. Because of their volume and limited administrative and judicial capacity, the process all-to-often takes years. This introduction provides a brief outline of the path along which Social Security Disability Insurance (DI) and Supplemental Security Income (SSI) benefit claims currently travel. It also describes some measures of and the principal constraints on the degree of variance in application of the statutory standards of disability that apply to them.
    Initial8-020§ 8-020. Initial Disability Determination
    Claims for disability benefits under both programs are filed with the Social Security Administration (the Agency or SSA). But while SSA personnel make the threshold determinations of the dates of insured status, in the case of Social Security Disability Insurance, and eligibility by virtue of low income and resources, in the case of SSI, the determinations concerning whether claimants meet the threshold test of disability are referred to state agencies. This unusual distributed framework, not shared by the other categories of Social Security or SSI benefits, was a critical component of the compromise that led to enactment of the DI program. And it is where large-scale variance begins. At present, nationwide, 1 in 3 claims are granted at this initial stage, but the percentages allowed by individual state agencies range widely – in fiscal year 2016 from a low around 25% to a high in excess of 50%. The stated grounds for those determinations exhibit an even wider variance. No doubt, some of the difference in state “allowance rates” is a consequence of economic, environmental, and demographic conditions, but the evidence is overwhelming that different approaches to these cases are a greater factor.
    In the majority of states, the first recourse for a claimant denied by the state disability determination service is to request that same agency reconsider its determination, a process that generates a modest number of additional allowances (The current rate is 12%.) and a slightly narrowed range of outcomes. (In ten states, the Agency has experimented with a process that does not include this step.)
    Administrative8-030§ 8-030. Administrative Law Judge
    Those who have been turned down upon reconsideration by the state disability determination service or are in an area where that step is not required have a right to appeal to the federal agency. Such an appeal leads to a hearing before one of the 1,300 or so Administrative Law Judges (ALJs) employed by SSA. Annually 700,000 or so appeals from denied claims reach this stage. By then the vast majority of those seeking benefits are represented, in most cases by an attorney with whom they have a contingent fee agreement. A growing percentage of the resulting ALJ hearings – 28 % in FY 2017 – take place via video rather than a face-to-face meeting with the ALJ. Nationwide ALJ decisions on the record, following a hearing, yield outcomes favorable to the claimant in 46% of the cases. But just as with the current national rates of 33% and 12% for state agency initial determinations and reconsidered determinations that overall figure cloaks an enduring and troubling degree of variance. A few ALJs award benefits to more than 90% of the claimants coming before them. A small number find disability established in fewer than 10% of their cases. For 95% of Social Security’s ALJs the rate of favorable decisions ranges between 26% and 85%. In all, the data suggest a powerful connection between which ALJ is assigned a claim and the likelihood of success with an appeal. Since a public record of the allowance rates of all Administrative Law Judges is maintained by the Social Security Administration, a claimant or her representative can learn the overall odds with the judge she has drawn and through exchange with others possessing past experience with that judge, how best to present the case and claimant.
    Appeals8-040§ 8-040. Appeals Council Review
    In nearly all cases those desiring to challenge an ALJ’s decision in court must first request review by the Social Security Administration’s Appeals Council. They have 60 days to do so. More than one-third of those receiving an unfavorable hearing take that step. Currently, that body grants review in fewer than one in five cases; however, when it grants review a remand for further proceedings or direct order of award is the likely outcome. The Appeals Council also has the authority, not often used, to review an ALJ’s decision on its own motion, without an appeal – authority that can be exercised to upset unwarranted grants of benefits. Two important features mark this stage of claims adjudication. First, Appeals Council review of an ALJ decision is not, strictly speaking, limited to the record on which that decision was based. Under limited circumstances, new evidence can be submitted as part of the appeal. and in recent years 7% or so of Appeals Council remands cited such new evidence. Second, judicial review is foreclosed unless a timely request for Appeals Council review has been filed and acted upon. In most cases, that action is a denial of review. With an Appeals Council denial of review or, less commonly, an adverse ruling on the merits of a claim, an action seeking judicial review can be filed in federal district court.
    Taking8-050§ 8-050. Taking the Claim
    In a year’s time, over 18,000 district court actions involving Social Security and Supplemental Security Income decisions are filed, approximately one in seven appealable Social Security Appeals Council dispositions. The Social Security Act itself, in 42 U.S.C. § 405(g), furnishes the framework for this judicial review. It sets out the standard of review and establishes jurisdiction. By its terms the claimant is entitled to a remand or reversal only if the agency’s decision is based on an error of law or is not supported by “substantial evidence”.
    In establishing the framework for judicial review of benefit determinations, the Social Security Act also circumscribes it, specifically precluding judicial review under other federal statutes, limiting review to final agency decisions based on a hearing, and requiring that the action be filed in a federal district court within 60 days after notice of the final decision. While courts may interpret the time limit with some flexibility, particularly in terms of when it begins to run, compliance with the limit is normally strictly enforced. However, in Bowen v. City of New York, 476 U.S. 467 (1986), the Supreme Court held that the 60-day limit is not jurisdictional. Consequently, under proper circumstances a federal district court may hold that the period's running is tolled on equitable grounds. The Supreme Court held that a case for tolling exists when claimants do not know of an internal Agency policy that violates their rights. Subsequent decisions suggest that although the case for tolling is strongest in cases involving government misconduct, in some circuits, at least, that is not required.
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  3. page Parent Benefits edited 5-100§ 6-100§ 6-100. In Benefits are available to the dependent parents (age 62 and over) of …

    5-100§6-100§ 6-100. In
    Benefits are available to the dependent parents (age 62 and over) of a deceased worker. Financial dependence on the deceased worker must be established; it is not presumed as in the case of most surviving children and spouses.
    There are no equivalent benefits for dependent parents of retired or disabled workers.
    5-200§6-200§ 6-200.
    xxx
    5-300§6-300§ 6-300.
    xxx
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  4. page Retirement Benefits edited 3-100§ 3-100. In General Monthly old-age insurance (retirement) benefits are available to wor…

    3-100§ 3-100. In General
    Monthly old-age insurance (retirement) benefits are available to workers covered by Social Security upon reaching age 62. The amount of the monthly benefit depends upon the worker's earnings history, upon the age at which the worker commences receiving the monthly benefit, and upon the level of the worker's continuing earned income.
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  5. page Judicial Review - New Evidence Submitted to Appeals Council edited 2-7402-740. New Evidence Submitted to the Appeals Council When the claimant has submitted new …

    2-7402-740. New Evidence Submitted to the Appeals Council

    When the claimant has submitted new evidence to the Appeals Council, but the Appeals Council has declined to review the ALJ's decision, two issues arise in the event of subsequent judicial review:
    whether the new evidence is part of the record against which the court will perform "substantial evidence" review, and
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  6. page Judicial Review - Harmless Error edited 2-730 2-730 2-730. Harmless Error Even if the benefit claimant can establish that the Social …
    2-730
    2-730 2-730. Harmless Error

    Even if the benefit claimant can establish that the Social Security Administration (SSA) committed procedural error or that SSA’s final decision failed to address a pertinent issue, the Government may argue that the error did not affect the outcome. In such cases it will ask the reviewing court to affirm, characterizing the defect as “harmless error” or not "prejudicial".
    A 2009 decision of the Supreme Court, Shinseki v. Sanders, 556 US 396 (2009), dealt with that line of argument in an arguably analogous setting – judicial review of disability benefit decisions made by the Veterans Administration. In Shinseki the Court held that in this context the reviewing court was to "apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases." Id. at 406. Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal has the burden of explaining how the error caused harm.
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  7. page Judicial Review - Harmless Error edited 2-730 Even if the benefit claimant can establish that the Social Security Administration (SSA) c…
    2-730
    Even if the benefit claimant can establish that the Social Security Administration (SSA) committed procedural error or that SSA’s final decision failed to address a pertinent issue, the Government may argue that the error did not affect the outcome. In such cases it will ask the reviewing court to affirm, characterizing the defect as “harmless error” or not "prejudicial".
    A 2009 decision of the Supreme Court, Shinseki v. Sanders, 556 US 396 (2009), dealt with that line of argument in an arguably analogous setting – judicial review of disability benefit decisions made by the Veterans Administration. In Shinseki the Court held that in this context the reviewing court was to "apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases." Id. at 406. Where harmfulness of the error is not apparent from the circumstances, the party seeking reversal has the burden of explaining how the error caused harm.
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  8. page Judicial Review - Substantial Evidence edited 2-720§ 2-720. Substantial Evidence Compared to other U.S. Circuit Courts of Appeals, the Seven…

    2-720§ 2-720. Substantial Evidence

    Compared to other U.S. Circuit Courts of Appeals, the Seventh Circuit has issued a large volume of Social Security opinions since January 1, 2007. As of November 15, 2016, they totaled 236 in all, 96 of them “published”, 140 of them “unpublished orders”. The First Circuit, by contrast, has over the same period issued but 14, only 4 of them "published". In further comparison with the First Circuit, the Seventh has produced reasoned decisions in a much high proportion of the Social Security cases filed with it during the same period and many more of them have been “published” decisions, binding as precedent on the Circuit Court itself and on all several district courts within its jurisdiction.
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