In the Spotlight

Advocacy Program Update – SSA’s Administrative Appeal (Appeals Council (AC)) Is Used as a Tool to Circumvent Claimant’s Right to Take Case to Federal Court; the SSA Discourages Attorneys From Representing Disabled People

By Steven Bruce, PWDF Legal Director

People With Disabilities Foundation (PWDF) is representing several Supplemental Security Income (SSI) recipients who have been threatened with or have had their benefits ceased.  (See related article.) We are also representing a client who had interference from the political arm of the Social Security Administration (SSA).  This occurred when the Appeals Council administratively reversed a fully favorable administrative law judge (ALJ) decision in which the SSA had promised to begin sending benefit checks 110 days after the date of the favorable ALJ decision (§ 8001, P.L. 100-647).  This also circumvented his right to take his case to federal court.[¹] The SSA has not sent our client the promised benefit checks due last October.  In the past, up to approximately 10 years ago, the AC only remanded unfavorable ALJ decisions to remedy legal errors before they had to defend them in court. Whereas now, it appears they have flipped it such that they are remanding fully favorable decisions on their own initiative, not just unfavorable ALJ decisions.

The SSA is also not following a federal judge’s order to pay attorney fees on one of our cases for going on a year, except for PWDF’s threat of filing a motion to hold the Commissioner of the SSA in contempt of court.  In 1990 amendments to the Social Security Act, 42 U.S.C. §§ 301 et seq., Congress provided for contingency attorney fees as an incentive for attorneys to represent disabled people in Social Security disability hearings.[²] Over the last few years, the SSA has made it more difficult for attorneys to get their fees, which creates a disincentive for attorneys to represent disabled individuals in Social Security disability proceedings.  This is a violation of a Congressional mandate.  Some attorneys have testified on this issue before the Social Security Subcommittee of the House Ways and Means Committee of the House of Representatives.  SSA claimed they paid 96% of attorney fees in a timely matter, which is not true according to attorneys who specialize in this field.  PWDF sued the SSA in federal court over difficulties in getting attorney fees, but we did not continue this litigation because we are a small nonprofit agency and we thought for-profit attorneys should be litigating this. As a result of these difficulties in getting paid, many attorneys are leaving the field, which defeats the Congressional intent for disabled claimants to have representation at their proceedings.

In sum, the SSA has developed at least three tools to cut people off the disability rolls. 1) making it more difficult for attorneys to collect statutory attorney fees, 2) not providing the Constitutionally required pre-termination hearings, and 3) and now,  reversing the purpose of the AC from a place to appeal an unfavorable decision to a place that will remand a fully favorable decision back to an ALJ.

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE and Commission of Rehabilitation Counselor Certification.