SSA Defrauds Another Widow(er)

Social Security Defrauds Yet Another Widow(er) -This Could Be You!

Laurence Kotlikoff 

A bunch of American dollars in denominations of 100 dollars notes rolled up and held together with a simple rubber band with two stack of american dollars in denominations of 100 dollars isolated on a white background.Getty

Social Security just defrauded Seattle-based William Shimeall of tens of thousands of dollars in widower benefits based on a decision by Social Security's Administrative Law Judge Glenn G. Myers.

Bill's story is instructive. It teaches us a lesson we all should already know - You can't trust anything the Social Security staff tells you. Nor can you rely on them to keep you from doing something that can only lower, potentially dramatically, your future benefits.
It also teaches us a new lesson. Social Security's self-appointed "judges" aren't, apparently, sworn to uphold justice. Instead, they appear sworn to uphold Social Security's patently fraudulent decisions no matter the size of the swindle.
Here are the facts. Judge for yourself.
Bill Shimeall turned full retirement age on August 3, 2015. Around that time much was written, including by me and my co-authors in our book, Get What's Yours - the Secrets to Maxing Out Your Social Security, about the file and suspend option which let eligible disabled children and spouses collect child and spousal benefits without forcing the primary earner to file before age 70 and accept permanently reduced benefits.

Some high-earning spouses were also able to use this mechanism to collect spousal benefits while waiting to collect their own highest retirement benefit. People in the Obama Administration decided, with no hearings or actual evidence, that this was, on balance, a boondoggle for the rich. So in November 2015, the Democrats in the House let House Republicans rewrite the law and hide the changes inside the Bipartisan Budget Act of 2015.
I saw a draft of the bill on a Sunday. The vote was scheduled for later that week. The next morning I posted a Forbes column pointing out that the new Social Security provisions would mean benefit cuts in six months for lots of people. Within a few hours of the appearance of the column, there were two highly complex amendments passed by Congress that included grandfathering clauses, some of which still pertain to millions of people, by the way.

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In any case, the new law with its complex amendments went into effect in November 2017. Then Social Security's headquarters sent misleading instructions to staff all around the country about the new  provisions. Through December, January and February of 2016, I kept getting emails from people saying they had read my columns, which said X, but that Social Security staff were saying not X. I started writing these mistakes up on a weekly basis hoping someone at Social Security was monitoring my columns and would fix things. Sure enough, in February 2016, senior staff at Social Security set up a conference call with me. During the call, I explained what the new law actually said and how it differed from what had been stated in the instructions. Within hours of the call, new instructions were issued. But the damage had been done. People continued to be misadvised by Social Security staff for months all over the country.
Bill appears to have been one of them. He went into his local Lynnwood Social Security office, located near Seattle, Washington, in early April 2016 to discuss filing and suspending his retirement benefit so his ailing wife could start collecting a spousal benefit while waiting for her disability benefit to be approved. Bill was under the impression that by going into the office and calling Social Security before the April 29, 2016 deadline he would be viewed as having met the deadline and be given more time to complete the paperwork. April 29th was the deadline for people who were grandfathered to file and suspend and have others collect benefits on their work records. We can still file and suspend. What we can't do, if we filed and suspended after April 29, 2016, is let others collect benefits on our records while our own retirement benefit is in suspension.
Bill spoke with several different people at the Lynwood Office that day and in the ensuing weeks. Each told him something different. In any case, in early May, Bill, thinking he was grandfathered because he had gone into the Lynwood Office to discuss filing and suspending before April 29th, proceeded to file and suspend.
Thereafter, Bill had lots of confusing back and fourths with the folks at the Lynwood office to find out why his wife's spousal benefits hadn't started. But by October, his wife had been granted disability benefits, so he stopped worrying about getting her spousal benefits.
In June 2017, Bill's wife died. Bill then applied for his widower's benefit believing a) he would receive his full widower's benefit of $944 a month and b) that he could wait until 70 to collect his own age-70 retirement benefit. Instead of receiving the $944, Bill was awarded $18 per month in widower's benefits. Why? Because he had filed for his retirement benefit back in May 2016. It didn't matter that his benefit was in suspension. Nor did it matter that his filing for and suspending his retirement benefit could never have helped his wife get spousal benefits under the new law.
No, Bill had filed for his retirement benefit, so Social Security treated him as if he were actually collecting his retirement benefit and since his retirement benefit exceeded his widowers benefit he was to receive the difference, if positive, between his widower and retirement benefit. I.e., he was to receive zero. The fact that Social Security decided he was owed $18 per month was another mistake.
Bill appealed the decision saying he had been mislead by Social Security when he filed and suspended. He hadn't been told that doing so could wipe out his potential widower benefit. Given his wife's physical condition, potentially losing his widower's benefit was a real possibility. But no one at the Lynnwood office told him this in either April or May. Indeed, in early May, before filing, he contacted a top Seattle financial planner, Julie Price, who warned him that he might endanger his potential widower benefit if he filed and suspended and that he should come see her. Bill didn't want to spend the money on outside advice, so went with what the Lynnwood staff were saying and weren't saying.
What the staff should have told Bill was, It's past the April 29, 2016 deadline. You and your wife have absolutely NOTHING to gain by your filing and suspending and potentially some $40,000 to LOSE in widowers benefits if she passes in the near term.
But the staff didn't tell Bill any of this. Instead they sat back and helped him shoot himself in the head by filing and suspending, whose sole impact, they knew or should have known, would only serve to eliminate his widower's benefit were his wife to die before he reached 70.
"Judge" Myers looked at the evidence and decided that Bill had, in fact, been warned about a possible widower's benefit issue by, get this, Julie Price and should have followed Julie's advice, not what the Lynnwood staff Social Security were and weren't saying. I.e., Bill, according to the "judge," should have followed the advice not of the Social Security professionals, but of a financial advisor whom Bill didn't know.
Based on Bill's "mistake" in relying on Social Security, he, not Social Security was at fault and he must suffer the consequences. This was the 'judge's" ruling.
The injustice here is staggering. Just think about this. Due to the Lynnwood's office's clear mistake (It should have refused to process Bill's request unless he signed a paper stating that filing could only hurt him financially.), the Judge Myers not only defrauded Bill. He also defrauded Bill's wife. She worked her entire life, paid Social Security taxes her entire life, only to have those taxes be confiscated by incompetent bureaucrats and a judge who seems not to understand the requirements of the word justice.
Bill is not alone in being defrauded by the Social Security system. Social Security's Inspector General's Report of (https://oig.ssa.gov/sites/default/files/audit/full/pdf/A-09-18-50559.pdf) of February 14, 2018 documents the routine failure of Social Security staff to provide proper guidance to actual, let alone near-term prospective widow(er)s).
I wrote about this report last year. And I wrote about the problem of Social Security's defrauding widow(er)s back in 2015 based on a courageous Social Security whistle blower's inside account. Social Security has the ability to go back and determine how much money they stole from people by letting them make filing decisions or making those filing decisions for them when such decisions could only work to their detriment. Once that determination is made, Social Security should provide restitution of such stolen benefits to participants or their survivors.
But back to Bill and "Judge" Myers. Any decent Social Security judge would conclude that if the staff assists someone in filing a claim that can only lower their benefits in the future and can never raise them, under any circumstance, that the staff has clearly made an error, to put it mildly. In this case, the judge should withdrawal the filing even if it's beyond the 12-month withdraw deadline, of which Bill was also not informed.
Judge Myers, it's time to reverse your decision and stand up for the millions of widows and widowers who have been terribly defrauded by Social Security staff, either knowingly or accidentally, over the years via staff-assisted or unilateral staff decisions that served only to financially injure actual or prospective widow(er)s.

Follow me @kotlikoff To safely raise your living standard and assess your investment risk, check out MaxiFi and my company. Pls pose Social Security questions at Ask Larry.

Laurence Kotlikoff Contributor

I am a professor of economics at Boston University, a Fellow of the American Academy, a Research Associate of the NBER, and President of Economic Security Planning, Inc. -- a company that markets personal financial planning tools at maxifi.com, maximizemysocialsecurity.com,...

Changes in Social Security 5-Step Disability Application Process 2019.

Changes in Social Security 5-Step Disability Application Process

 Administration has recently implemented changes to their Social Security Disability Income application process, including the reinstatement of the reconsideration step in the claim application process in five states, with Louisiana among them.

The SSA removed the reconsideration step from the claim application process in ten states in 1999, and is adding it back now as part of an effort to save money. Some filing for disability may benefit from reconsideration, but others will see longer delays in claim processing.
“What people basically need to know is that starting January 1, Louisiana applicants see a new step in the process of filing for SSDI,” said Mike Stein, assistant vice president of Operations Strategy and Planning with Allsup, an organization that helps claim applicants navigate the process.
“Reconsideration takes places after an initial application has been denied, which happens in two out of every three claims. For the 13 percent of people who get accepted after reconsideration, this step saves them time and saves the government money. The other 87 percent of applicants will continue to the appeal process, so reconsideration effectively adds three to six months processing time to their claim,” Stein said.
Part of FICA taxes workers pay each year funds SSDI benefits, as sort of a long term insurance program for workers who become injured beyond their ability to continue working.
“There are a lot of myths and misconceptions about the program,” Stein said. “People think it’s easy to get on and the government just gives away money, but it’s actually a very stringent program. It’s only open to people who have paid in through their taxes and have been injured in a serious and long term way. So, most of our clients are people who have been dealt some of the worst hands anyone can be dealt, from a medical standpoint.”
After a worker is injured and files a claim with the SSA, an initial determination is made after four to six months, with about 34 percent of claims approved on average. For nearly twenty years, Louisiana claimants moved from an initial rejection into an appeal process, held before a judge, with wait times that currently average around 450 days. Rejected claims filed after January 1 will now move into the reconsideration phase prior to an appeal process.
“Back in the late 90s, the SSA looked at the reality that only 13 percent of applications were accepted following reconsideration and decided to see if they could save money, or speed things up, by eliminating that step,” Stein said. “The Trump Administration now says it has research indicating it could result in a net savings to keep reconsideration.”
SSDI appeal hearings are expensive, requiring judges, vocational and medical experts and travel budgets.
“The Trump Administration says that 13 percent less appeal hearings could save money,” Stein said. “For the people who see their application granted during reconsideration, this will also save time. The vast majority of people will see additional time and paperwork as part of their SSDI claim process.”
There has been some controversy surrounding the introduction of the SSA’s new policy. During a congressional meeting of the House Ways and Means Committee last summer, several members objected to the reinstatement of the reconciliation process, and acting SSA commissioner Nancy Berryhill signed a letter along with eleven members of Congress arguing that “there is little evidence to show that reconsideration is a meaningful step in the disability appeals process.”
Despite some resistance to recent changes, the Trump Administration has nominated a new commissioner to head the agency – Andrew Saul – and plans to move forward.
“They have a roll out schedule in place and we can expect to see more changes in April and October, and well as early next year. These changes can make an already complex situation more confusing, and we just encourage people to hire someone knowledgeable to try and shorten what will already be a long time without income after an injury,” Stein said.
28th January 2019 
 

By Meghan Holmes
Contributing Writer
The Social Security

What Do You Think of Ruth Bader Ginsburg?

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane Sherron De Hart, a retired professor of history at the University of California, Santa Barbara. This book began as a research project examining Ginsburg’s early career as a women’s-rights litigator at the American Civil Liberties Union, and it expanded into a full-length biography (540 pages of text and 110 pages of footnotes).
Ginsburg spoke at length to the author during the early, limited part of the project, but she curtailed her cooperation later, likely because an authorized biography was (and remains) in the works. Whether because of De Hart’s own initial interest or the benefits of consultation with Ginsburg, the book is strongest when it focuses on Ginsburg’s early life and her work before her appointment to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. Readers will meet straight-A student and Brooklyn baton-twirler “Kiki” Bader, whose mother Celia died of cancer two days before Kiki’s high-school graduation. They will shake their heads at the notion that Ginsburg, although graduating at the top of her class from Columbia Law School, was offered a clerkship with a federal judge only after her law professor Gerald Gunther offered to substitute another (presumably male) candidate if Ginsburg did not pan out. And they will be touched by Ginsburg’s enduring partnership with her husband, Marty, who, as Ginsburg has said, “believed in me more than I believed in myself.”

Some of De Hart’s most valuable insights come in her account of how Ginsburg, who, in an effort “not [to] be considered confrontational,” responded to Harvard Law School Dean Erwin Griswold’s query about why she was occupying a place in the first-year class that could have gone to a man by saying it was important for her to “understand her husband’s work,” came to espouse women’s rights so whole-heartedly. De Hart traces some through lines that help explain how Ginsburg developed the ideas of equality that informed her determination to secure equal treatment for women under the law. Notable among these was a fortuitous sojourn in Sweden to research Swedish civil procedure. Ginsburg was struck by “the greater gender equality Swedes enjoyed” and by Swedish theorists’ and social scientists’ contention that “culturally constructed roles – stereotypical assumptions about the proper role of men and women – imposed constraints on both sexes that penalized individuals and impoverished society.”
Ginsburg’s experiences in Sweden, coupled with the sexism she had experienced and the influence of feminist writers like Simone de Beauvoir, prompted her to helm the ACLU’s new Women’s Rights Project. Her analytical tenacity, single-minded focus on work, meticulous planning, and uncompromisingly high standards enabled her to devise and carry out her goals successfully. De Hart offers detailed accounts of the series of cases through which Ginsburg succeeded in persuading the Supreme Court to raise the standard of review for laws that treated men and women differently based on damaging stereotypes about gender roles. She observes, as have others before her, that Ginsburg’s incremental approach – building in small steps on early cases with sympathetic plaintiffs, often men – was modeled on Justice Thurgood Marshall’s strategy of combating racial discrimination as a litigator for the NAACP. But she also highlights the pitfalls of equating gender discrimination with racial discrimination, particularly as an increasingly conservative Supreme Court began to insist on a “color blind” approach to the Constitution that subjected affirmative action programs to strict scrutiny.
Readers familiar with the pop-culture trope of Ginsburg as a fearless champion of liberal ideals may be surprised by De Hart’s reminder that the justice’s nomination was almost forestalled by her criticism of Roe v. Wade, which she publicly suggested may have done abortion rights a disservice by, among other things, leapfrogging legislative change and prompting a powerful political backlash. De Hart exposes the rifts within the feminist movement that led President Bill Clinton to respond, when Ginsburg’s name was first floated, that “the women are against her.”
De Hart’s account of Ginsburg’s years on the Supreme Court, though detailed and methodical, is less compelling, perhaps because De Hart had to rely on oral argument transcripts and opinions instead of interviews and the contemporaneous documents of the justices, most of which are not publicly available. Also evident in this section of the book is De Hart’s unhappiness with the conservative bent of the current Supreme Court. Although this ideological stance is not surprising given the clear respect for Ginsburg’s work that led De Hart to write this book, the author’s stridency sometimes detracts from her analysis.
These criticisms aside, De Hart offers the reader a comprehensive tour of Ginsburg’s Supreme Court career. She catalogs the justice’s occasional victories, like United States v. Virginia, in which Ginsburg wrote a majority opinion striking down the Virginia Military Institute’s male-only admission policy, and her more frequent setbacks. Those setbacks spurred Ginsburg to write the strong dissents that inspired her pop-culture persona, the “Notorious RBG.” Court-watchers humorously compared her scathing critique of the conservative majority’s decision in a landmark voting-rights case to Biggie Smalls’ biting rap lyrics. The rest is history – and shelves full of RBG merchandise.
A central question in the book is how a tiny, soft-spoken civil-procedure maven memorably described by Justice Harry Blackmun after an oral argument as a “very precise female” became a progressive icon. To some degree, this apparent contradiction simply reflects the differing facets of the justice’s personality: She is a detail-oriented workaholic who is moved to tears by grand opera, an ambitious achiever who delights in friends and family, and a rule-follower willing to rewrite the rules to correct injustice. In another sense, Ginsburg’s perceived evolution from “a woman for whom the word ‘moderate’ dangled from her wrist like an ID bracelet” to the inspiration for a Kickstarter-funded action figure is a function of the increasing conservatism of the Supreme Court. Yesterday’s New Deal moderate is today’s left-wing dissenter. In the immortal words of Norma Desmond in “Sunset Boulevard” – whom Ginsburg otherwise resembles only in her fondness for wearing turbans – “I am big. It’s the pictures that got small.”
The author of this book review clerked for Ginsburg from 1989-1990 on the U.S. Court of Appeals for the District of Columbia Circuit and testified before the Senate Judiciary Committee in support of Ginsburg’s nomination to the Supreme Court in 1993.
The post Book review: “Ruth Bader Ginsburg”: The evolution of a justice appeared first on SCOTUSblog.

No Cap On Attorneys' Fees For Lawyers Representing Social Security Claimants

Opinion analysis: Social Security cap on attorney’s fees applies separately to successful representation before a court

According to a unanimous opinion released today, Social Security law does not impose an aggregate cap of 25 percent on attorney’s fees for successful representation of a Social Security disability claimant before both the Social Security Administration and a court. Instead, a 25 percent cap applies separately to representation before the court. This is a win for attorney Richard Culbertson, who represented a disability claimant both before the Social Security Administration and in court. He may now collect separate attorney’s fees for his successful representation before the court.
The case turned on the meaning of “such representation” in 42 U.S.C. § 406(b), which provides in relevant part:

Whenever a court renders a judgment favorable to a claimant under [Title II of the Social Security Act] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

The opinion, written by Justice Clarence Thomas, first applied a plain-meaning approach. The court quoted the Concise Oxford Dictionary of Current English for the definition of “such”: “[o]f the kind or degree already described or implied,” and declared that “the only form of representation ‘already described’ in § 406(b) is ‘represent[ation] before the court by an attorney.’” Based on this statutory language, the court announced that “the 25% cap applies only to fees for representation before the court, not the agency.”

Although the court began its analysis by quoting an earlier opinion: “We begi[n] with the language of the statute itself, and that is also where the inquiry should end, for the statute’s language is plain,” the court did not end the inquiry with the dictionary definition of “such.” Instead, it also considered other provisions of the statute and found that the structure of the statute and its other provisions were consistent with its interpretation of the statute.
The court noted that two different provisions, 42 U.S.C. § 406(a) and 42 U.S.C. § 406(b), address different stages of representation and calculate fees differently. Section 406(b) applies to court representation and imposes a flat 25 percent cap on fees for court representation. Section 406(a) applies to representation before the agency and provides two methods for determining fees for agency representation. One method, Section 406(a)(2), applies to fee agreements and caps fees at the lesser of 25 percent of past-due benefits or $6,000. The second method, Section 406(a)(1), applies when there is no fee agreement and authorizes the agency to set any fee, including a fee that exceeds 25 percent of past-due benefits, as long as the fee is “reasonable.”
The Supreme Court concluded that it would make little sense to apply the Section 406(b) court-stage cap to agency-stage Section 406(a) fees or the aggregate of Sections 406(a) and 406(b) fees. First, because many claimants never litigate in court, it would be incongruous to impose a 25 percent cap on agency fees based on a statutory provision regulating representation before a court. Second, applying the 406(b) cap to agency representation without a fee agreement would impose a limitation that Congress did not include in the relevant statutory provision. According to the court, “[i]f Congress had wanted these fees to be capped at 25%, it presumably would have said so directly in subsection (a), instead of providing for a ‘reasonable fee’ in that subsection [§ 406(a)(1)] and adding a 25% cap in § 406(b) without even referencing subsection (a).”
The court then turned to amicus Amy Weil’s argument that, when the statute is read as a whole, it is evident that Congress intended to place a cumulative 25 percent cap on attorney’s fees. The court acknowledged that Weil was correct in noting that the Social Security Administration only withholds a single pool of 25 percent of past-due benefits from which to pay fees for both agency and court representation. The court, however, noted that the single pool was the result of agency policy and the statute itself authorizes two pools of money for direct payment of fees. More importantly, according to the court, “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.” Until 1968, the Social Security Act allowed fees for successful representation before the agency but did not provide for direct payment from past-due benefits. In addition, under current “§§ 406(a)(1) and (4), the agency can award a ‘reasonable fee’ that exceeds the 25% of past-due benefits it can withhold for direct payment.”
The outcome is not surprising in light of the clear text of the statute and the fact that neither party defended the judgment below. Although Weil “ably discharged her assigned responsibilities” as amicus, and “despite the force of [her] arguments,” the court ruled against her as it does in 75 percent of cases with court-appointed amici curiae.

Argument preview: Justices consider cap on attorney’s fees for successful representation of Social Security disability claimants (Corrected)

Attorney Richard Culbertson successfully represented several Social Security disability claimants both before the Social Security Administration and in federal court. Prior to his representation, he entered into fee agreements that provided that the clients would pay him attorney’s fees equal to 25 percent of past-due benefits for successful representation before the court as well as separate attorney’s fees for successful representation before the agency. Following longstanding precedent of the U.S. Court of Appeals for the 5th Circuit, adopted by the U.S. Court of Appeals for the 11th Circuit, the court below capped his attorney’s fees at 25 percent of past-due benefits for representation before both the Social Security Administration and the court.
In granting certiorari, the Supreme Court agreed to resolve a split among the federal courts of appeals as to whether the Social Security Act imposes an aggregate cap on attorney’s fees of 25 percent of past-due benefits for representation before both the court and the Social Security Administration, or instead the 25 percent cap applies separately to representation before the court.

The Social Security Act regulates the amount and manner in which an attorney may collect fees from a disability claimant for successful representation before the agency and the court. 42 USC § 406(a) governs attorney’s fees for successful representation before the agency, while 42 USC § 406(b) governs attorney’s fees for successful representation before the court. The Equal Access to Justice Act also authorizes a court to order recovery of “reasonable attorney’s fees” from the government in certain cases in which the claimant is successful and the government’s position was not “substantially justified.” If attorney’s fees are awarded under the EAJA and under Section 406(b), the attorney must refund the lesser fee to the claimant. The Social Security Administration withholds a single pool of 25 percent of past-due benefits from which to certify for payment any and all attorney’s fees awarded under Section 406(a) and/or 406(b).
Section 406(a) authorizes two avenues for recovery of attorney’s fees from a claimant for successful representation before the agency. Under Section 406(a)(1), an attorney may file a “fee petition” with the Social Security Administration. Alternatively, under a more recent and more commonly used, streamlined process, an attorney may seek approval of a “fee agreement” with a claimant under Section 406(a)(2). No cap is imposed under Section 406(a)(1). Section 406(a)(2) limits attorney’s fees to the lesser of 25 percent of past-due benefits or a specified dollar amount, currently set at $6,000.
For successful representation before a court, Section 406(b)(1)(A) provides in relevant part:

Whenever a court renders a judgment favorable to a claimant under [Title II] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

Section 406(b)(1)(A) further provides that “no other fee may be payable or certified for payment for such representation except as provided in this paragraph.”
Focusing on the “plain meaning” of Section 406(b), Culbertson argues that the term “such representation” in Section 406(b)(1)(A) clearly refers to the antecedent phrase “represented before the court,” and thus under the plain meaning of Section 406(b), the 25 percent cap applies to representation “before the court by an attorney” and does not include representation before the agency. Culbertson also argues that a separate cap on attorney’s fees for representation before the court is consistent with the structure of Section 406 as well as the purpose of the statute and its legislative history.
Almost 40 years ago, in the first circuit-court decision to address this issue, Dawson v. Finch, the 5th Circuit held that Section 406(b) imposes an aggregate cap on attorney’s fees for representation in the administrative proceedings as well as before the court. In reaching this result, the 5th Circuit looked to the legislative history of the provision in order to discern Congress’ intent. Specifically, the court focused on the fact that Congress added Section 406(b) to address two goals. First, Congress sought to encourage effective legal representation by “insuring lawyers that they will receive reasonable fees directly through certification by the Secretary.” Second, Congress sought to protect claimants against excessive attorneys’ fees, which in the past had reached one-third to one-half of claimants’ past-due benefits, by imposing the 25 percent cap on fees. In 1982, the U.S. Court of Appeals for the 4th Circuit also looked to this legislative history to hold in Morris v. Social Security Administration that Section 406(b) imposes a cumulative 25 percent cap on attorney’s fees.
More recently, the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have focused on the text of section 406(b) to hold that the 25 percent cap only applies to representation before a court. See Horenstein v. Secretary of Health and Human Services; Clark v. Astrue; and Wrenn v. Astrue, respectively.
The commissioner’s position on this issue has flipflopped over the years. Almost 40 years ago, the commissioner sided with the 5th Circuit in interpreting Section 406(b) to impose an aggregate cap and opposed the grant of certiorari in Dawson. Then about 15 years later, the commissioner sought and obtained 6th Circuit en banc review of the panel’s decision in Horenstein v. Secretary of Health and Human Services based on arguments that were logically inconsistent with an aggregate 25 percent cap. Almost 15 years after that, the commissioner argued in briefs before the 9th and 10th Circuits that an aggregate cap honors congressional intent and it would be inappropriate to permit attorneys to potentially collect up to 25 percent of a disability claimant’s past-due benefits at both the agency and court levels.
In this case, the acting commissioner initially supported the 11th Circuit’s rule imposing an aggregate cap. Then, after requesting four extensions to file a response, the acting commissioner filed a response siding with Culbertson and arguing that the text of Section 406(b) unambiguously applies the 25 percent cap only to attorney’s fees for representation before a court. The acting commissioner further argues that a 25 percent cap would be inconsistent with other provisions of Section 406(a) and that the absence of an aggregate cap does not mean that the agency and courts should approve fees that in the aggregate are equal to or greater than 50 percent of a claimant’s past-due benefits.
Because the acting commissioner agrees with Culbertson, the Supreme Court appointed Amy Levin Weil, an experienced 11th Circuit appellate litigator, to serve as amicus curiae in support of the 11th Circuit’s decision. Weil argues that the statute itself does not specifically state whether combined attorney’s fees may exceed 25 percent, and that the text of Section 406(a) and Section 406(b), read together, supports the aggregate rule. She also points to the legislative history on which the 4th and 5th Circuits relied in support of an aggregate 25 percent cap.  She contends that permitting attorney’s fees to exceed 25 percent in the aggregate could lead to attorneys suing their clients to collect fees out of their present or future Social Security benefits contrary to the Social Security Act’s purpose of ensuring beneficiaries a protected source of income. She also argues that rejecting the 25 percent aggregate rule would lead to absurd results, with fees of up to 75 percent of past-due benefits if a favorable district court opinion is appealed and the applicant is successful in the court of appeals. She contends that the aggregate cap allows a logical division of agency and court fees from the 25-percent-of-accrued-benefit pool in a manner that recognizes that a portion of the accrued benefits is attributable to the time that the case was pending before the agency while the other portion is attributable to the time the case was pending before the court.
The National Organization of Social Security Claimants’ Representatives filed an amicus brief in the case. The NOSSCR does not address the plain meaning of the statute. Instead, it contends that Section 406(b) cannot impose an aggregate 25 percent cap on attorney’s fees for representation before a court and the agency because Section 406(a)(1) does not impose a cap on fees before the agency. NOSSCR further argues that a court has no discretion to impose an aggregate cap. NOSSCR informs the court that in circuits without an aggregate cap, the prevailing market rate includes a cumulative cap either by contract or in practice.
Weil faces an uphill battle in convincing the Supreme Court to uphold the 11th Circuit’s decision. The plain-meaning approach to statutory interpretation currently favored by the court supports Culbertson’s position. Moreover, amici curiae appointed by the Supreme Court typically only win about 25 percent of their cases.
If, however, Weil can convince the court to look beyond the text of the Section 406(b) in isolation, it may, like Chief Judge Geoffrey Crawford of the District of Vermont, find that “it would be strange indeed to believe that Congress would in 1965 denounce 50% contingency fees as excessive and enact a statute to stop them, and then, in 1968, pass a law with the effect of permitting 50% contingency fees.”
A previous version of this post inadvertently implied that NOSSCR advocated a particular method for EAJA offsets.

Kathryn Moore Guest

Posted Wed, October 31st, 2018 11:04 am

Email Kathryn

CULBERTSON vs BERRYHILL 

On January 8, 2019, the Supreme Court of the United States decided Culbertson v. Berryhill, No. 17-773, holding that the Social Security Act permits an attorney fee award greater than 25 percent of the claimant’s past-due benefits for representation before both the Social Security Administration and a reviewing federal court.
The Social Security Act, 42 U.S.C. § 406 et seq., addresses attorney’s fees in two discrete phases: ‘“§406(a) governs fees for representation in administrative proceedings; §406(b) controls fees for representation in court.’” (quoting Gisbrecht v. Barnhart, 535 U. S. 789, 794 (2002)). Section 406(a) gives the agency discretion to award a reasonable fee to an attorney who obtains a favorable agency determination in the absence of a fee arrangement with the claimant, but, if there is a fee arrangement, section 406(a) “caps fees at the lesser of 25 [percent] of past-due benefits or a set dollar amount—currently $6,000.” Section 406(b), titled “Fees for representation before court,” allows a court to award “a reasonable fee for such representation, not in excess of 25 [percent] of the total of the past-due benefits” if “a court renders a judgment favorable to a claimant.” Id. § 406(b)(1)(A).
Attorney Richard Culbertson represented a Social Security claimant before the Social Security Administration as well as before a federal district court. The agency denied the claimant’s benefits, and Culbertson sought review of that decision before the District Court. The District Court ruled in favor of the claimant, reversing the agency’s denial of benefits and remanding the case to the agency to determine the benefits due the claimant. On remand, the agency awarded the claimant past-due benefits and also awarded Culbertson fees under section 406(a) for representing the claimant before the agency. Culbertson subsequently moved the District Court for a separate fee award under section 406(b) based on his representation of the claimant there. “The court granted Culbertson’s request only in part because he did not subtract the amount he had already received under §406(a) for his agency-level representation.” The Eleventh Circuit affirmed based on its precedent at the time which dictated that ‘“the 25 [percent] limit from §406(b) applies to total fees awarded under both §406(a) and (b), precluding the aggregate allowance of attorney’s fees greater than [25] percent of the past due benefits received by the claimant.’” (quoting Wood v. Commissioner of Social Security, 861 F. 3d 1197, 1205 (11th Cir. 2017) (internal quotations omitted)).
The Supreme Court began and ended its inquiry with the language of the statute because ‘“the statute’s language is plain.’” The Court observed that § 406(b) specifically addresses representation in court and allows a court to award ‘“a reasonable fee for such representation.’” (quoting 42 U.S.C. § 406(b)(1)(A)). The Court held that the phrase “such representation” in section 406(b) demonstrated that section 406(b)’s “25 [percent] cap applies only to fees for representation before the court, not the agency.” The Court explained that “the adjective ‘such’ means ‘[o]f the kind or degree already described or implied,’” (quoting H. Fowler & F. Fowler, Concise Oxford Dictionary of Current English 1289 (5th ed. 1964)), and that “the only form of representation ‘already described’ in §406(b) is ‘represent[ation] before the court by an attorney.’”
The Court went on to explain that the structure of the statute confirmed the Court’s interpretation. First, “subsections (a) and (b) address different stages of the representation,” and it makes sense “that the statute contemplates separate fees for each stage of representation.” And, second, the subsections calculate the attorney’s fees differently. Were the Eleventh Circuit’s interpretation correct, section 406(b)’s calculation of fees would limit section 406(a)’s calculation, which “would make little sense” given that “[m]any claimants will never litigate in court.”
The Court rejected the argument advanced by amicus curiae that, reading the statute as a whole, Congress intended a cumulative 25 percent cap on attorney’s fees for successful representation before the agency and the court. Acknowledging the Commissioner’s current policy to withhold only 25 percent of past-due benefits for direct payment of agency and court fees, the Court nonetheless noted that the statute provides “two pools of money for direct payment of fees” and further that “[a]ny shortage of withheld benefits for direct payment of fees is thus due to agency policy.” The Court also observed that the amount of past-due benefits withheld for direct payment did not limit the amount of fees that could be charged, observing that the statute historically did not have a direct payment mechanism.
Justice Thomas delivered the decision for a unanimous Court.
 

Social Security Judge Commits Suicide

A former friend of Judge Timothy Maher, a Social Security Judge who committed suicide when he shot himself with a rifle Aug. 24 after a prolonged standoff with police, is speaking out about events leading to the incident.

 

“I hope someone will investigate SSA culpability in this tragedy so it does not happen again,” he said.

“I am angry right now that a friend has needlessly died,But I am more angry at how the Social Security Administration mishandled this tragic situation.”

“He was a decent, honorable, good judge, who needed some help; so, I was very sorry and angry to see that he died,”

My anger is predominantly directed at the Social Security operation, which I feel ”is not a good model for a judicial system.”

“The SSA was putting more pressure on the ALJs to put out more cases to decrease the Backlog of Cases waiting to be heard. Back in 2014 the Backlog was over 900,000 cases.

It’s more than a million now."

Judge Maher and I were among an “overwhelming number” of SSA ALJ disability judges who weren’t able to retain staff because we were members of a union, the Association of Administrative Law Judges.(AALJ)

“In order to be a union member no one can work for you. It’s a very strange situation.”

                                        

In 2015, the Office of Disability Adjudication and Review, or ODAR, conducted an investigation into Judge Maher over allegations of harassment.

Maher was barred from the Miami Hearing Office and told to conduct all hearings from Fort Lauderdale for the duration of the investigation. The Office of Disability Adjudication and Review also allegedly instructed Fort Lauderdale staff not to speak to him.

Maher was arrested Aug. 14, it was after he allegedly pointed a rifle at his ex-girlfriend in her El Portal home when he came to pick up their 4-year-old son under a shared-custody arrangement.

A week later, Judge Maher held his in-laws hostage inside a house in Homestead, then ended his life.

He said the agency is home to a huge backlog of cases.

The Social Security Administration did not respond to requests for comment.

Judge Accused Of Threating Girlfriend With Rifle

Social Security Hearing Office in Miami is closed as Judge is investigated for making a threat.

A downtown Miami Social Security Hearing Office remained closed Aug 22, 2018 as federal agents investigated whether a Judge who handles SSA disability cases threatened a co-worker with a Rifle.

The alleged threat came from ALJ Timothy Maher. He was arrested accused of threatening his ex-girlfriend, one of his colleagues at the Social Security Administration office, 333 S. Miami Ave., where Maher normally works reviewing social-security disability claims.

The decision to close the office was made by Federal Protective Services, a branch of U.S. Homeland Security, which provides armed security for U.S. government buildings.
Read more here: https://www.miamiherald.com/latest-n…/article217127315.html…

Crime Does Not Pay For Two Social Security Judges and A Lawyer

Fugitive lawyer pleads guilty for escape, fraud

A former fugitive and social security disability lawyer pleaded guilty in federal court June 6, 2018 for his role in scheming to defraud the Social Security Administration (SSA) of more than $550 million, retaliating against an informant and fleeing from the United States.

Attorney Eric Christopher Conn, 58, of Pikeville pleaded guilty before U.S. District Judge Danny C. Reeves of the Eastern District of Kentucky to one count of conspiracy to defraud the United States, one count of conspiracy to escape and one count of conspiracy to retaliate against an informant. Sentencing is set for September 7, 2018.
http://cgacriticalthinkers.blogspot.com/2017/12/when-judge-breaks-law-when-judge-goes.html
According to the plea, from October 2004 to December 2017, Conn participated in a scheme with former SSA administrative law judge David Black Daugherty, multiple doctors, including clinical psychologist Alfred Bradley Adkins, and others to submit thousands of falsified medical documents to the SSA to fraudulently obtain disability benefits totaling more than $550 million for thousands of individuals.
According to the plea, of a former SSA employee discovering and providing information about the scheme to federal agents, Conn and former SSA administrative law judge Charlie Paul Andrus conspired and acted to have the former SSA employee terminated in an effort to discredit the employee.
Finally, Conn admitted that after pleading guilty in March 2017, and prior to being sentenced on June 2, 2017, he fled the country with the help of Curtis Lee Wyatt by severing the electronic monitoring device from his ankle and fleeing across the Mexican border. 
Conn was originally charged in April 2016, along with Daugherty and Adkins, in an 18-count indictment with conspiracy to commit mail and wire fraud and other related offenses in connection with the disability fraud scheme.
Conn subsequently pleaded guilty on March 24, 2017, to a two-count information charging him with theft of government money and paying illegal gratuities, and he was sentenced in absentia on July 14, 2017 to 12 years in prison on those charges.
After his flight from the United States, Conn was charged, along with Wyatt, in September 2017, in a seven-count indictment with conspiracy to escape, escape and other related offenses.
On Dec. 5, 2017, Conn was returned to the United States from Honduras after being apprehended by Honduran authorities.
Conn’s plea today resolves the outstanding charges against him.
In addition to the 12 years in prison Conn is currently serving, he now faces an additional 15 years in prison. As part of the plea agreement, Conn agreed to recommend to the Court at sentencing that the Court sentence him to the maximum possible sentence, a 15-year sentence, and run that sentence consecutive to the 12-year sentence previously imposed, for a total of 27 years in prison.
Andrus pleaded guilty in June 2016 to a one-count information charging him with conspiracy to retaliate against an informant, and was sentenced Aug. 7, 2017 to six months in prison.
Daugherty pleaded guilty in May 2017 to a two-count information charging him with receiving illegal gratuities, and was sentenced on Aug. 25, 2017, to four years in prison.
Adkins was found guilty following a six-day trial in June 2017 of one count of conspiracy to commit mail fraud and wire fraud, one count of mail fraud, one count of wire fraud and one count of making false statements, and was sentenced on Sept. 22, 2017, to 25 years in prison. Wyatt pleaded guilty in March 2018, and is scheduled to be sentenced on June 29.
(June 6, 2018)