1975, May, Pg. 851. Social Security Appeals.

• Author: by Jerome Smith

4 Colo.Law. 851

Colorado Lawyer

1975.

1975, May, Pg. 851.

Social Security Appeals

851Vol. 4, No. 5, Pg. 851Social Security Appealsby Jerome SmithOf approximately 800 federal administrative law judges, more than 400 hear Social Security appeals, cases in which benefits have been denied or limited initially and on reconsideration, the two administrative determination stages preliminary to a hearing before an administrative law judge. This hearing affords the claimant his first opportunity to come face-to-face with a person who will make a determination in his case. Since each judge hears approximately 200 Social Security appeals per year, the large number of such hearings, in which attorneys may appear on behalf of claimants, is readily apparent.(fn1) Within the last year, administrative law judges have also been hearing large numbers of cases from two new programs administered by the Social Security Administration---the black lung benefits program and the supplemental security income program. In many cases Social Security and supplemental security issues are combined in a consolidated hearing.

ATTORNEY REPRESENTATION

While attorneys appear for claimants in only one out of five hearings before administrative law judges, such participation is highly desirable from the standpoint of the client, since the average Social Security claimant is of limited education, is participating in his first legal proceeding of any kind, and is not conversant with the ever-changing Social Security Act and Regulations. While it is the duty of the administrative law judge to protect the rights of both the claimant and the Secretary of Health, Education and Welfare in the course of the hearing (the Secretary is rarely represented by counsel in Social Security hearings), the large number of cases which the judge handles make it impossible for him to give the claimant the kind of protection that he can have through employment of private counsel.(fn2) It may be appropriate to note that administrative law judges employed by agencies other than Social Security have the advantages of attorney representation on both sides in nearly every case, and of an annual case load closer to 20 than to 200. Furthermore, the massive number of cases being developed by the Bureau of Disability Insurance, other Social Security bureaus, and various cooperating state agencies, of which only a limited number lead to requests for hearing, results in a level of case preparation that is often far from ideal. Thus, the Social Security administrative law judge sits in the unenviable position of receiving a file with limited development, is without the benefit of an independent investigative staff, and is frequently without benefit of attorney representation on either side in his search for the material facts of the case through limited pre-hearing inquiries and a hearing

852that ordinarily is completed within onequarter or one-half day. The conscientious judge is sometimes awed by the task.DISABILITY CASES

In an average year, perhaps 75 percent of the cases heard by an administrative law judge are "disability" cases, the issues therein being whether the claimant has "insured status," i.e. earnings in the prescribed numbers of calendar quarters, and whether he has been unable to perform substantial and gainful work for a period of at least 12 consecutive months as the result of medically determinable impairments. In these cases, the result is either "all or nothing" for the claimant, with the exception that he may be awarded a period of disability of lesser duration than that which he seeks. Quite unlike the permanent disability percentage awards given in Veterans Administration and Workmen's Compensation cases, the awards in Social Security cases must be either against the claimant or in his favor for a period of disability of at least one year. For many reasons, including the fact that claimant's condition may have worsened in the several months between reconsideration determination and hearing, it is possible for the administrative law judge to find in favor of the claimant, who has been twice unsuccessful in obtaining benefits. Indeed, through various periods of time, computations have indicated administrative law judge reversal rates of between one-third and one-half of the cases appealed.(fn3)

Where there is attorney representation in a disability case, the most common attorney fee charge is 25 percent of past-due benefits. This method of charging has been encouraged in part by the fact that the Secretary now withholds 25 percent of past-due benefits (to the claimant and to his dependents), to be applied in part or in whole to later approved attorney fees. While past-due benefits vary considerably in amount, on occasion they substantially exceed $10,000. A typical case may provide a claimant with $3,000 in past due benefits and allow attorney fees of about $750 under a 25 percent contingent fee arrangement.

Types of cases other than disability heard by administrative law judges include date-of-birth and insured status issues in retirement cases, family benefits in seven-year-absence presumption-of-death cases, hospital insurance benefits...