The Social Security Administration recently announced a small increase to the maximum attorney fee that lawyers representing disability claimants will be paid. As usual, SSA took a simple idea and made it unduly complicated, causing confusion for everyone.
Currently, if you hire a disability attorney to represent you under a “fee agreement” SSA will withhold 25% of your past due (lump sum) payment with a maximum fee of $6,000 if your case is approved and past due benefits are payable. The lump sum represents your monthly benefits that have accrued while you have been waiting for a decision.
In June, 2022, SSA announced that the fee cap would be raised from $6,000 to $7,200, effective November 30, 2022. This means that in cases decided by SSA prior to November 30, 2022, the fee cap will be $6,000, but in cases decided on November 30, 2022 and thereafter the fee cap will be $7,200.
This increase in the fee cap has been delayed far too long and it does not account for inflation and the increased cost of doing business. The cap was raised from $4,500 to $6,000 back in 2009 (13 years ago). While your lawyer’s earnings may not be at the top of your list of things to worry about when you are unable to work, in pain and struggling to get by every day, SSA’s policies regarding attorneys’ fees does impact you.
How SSA’s Attorney’s Fee Limitations Affect You
The most direct impact of SSA’s fee cap is to force attorneys to be extremely selective in accepting cases for representation. As you probably know, SSD cases often take up to 24 months to be processed by SSA. During that time, your lawyer is paying salaries, rent, utilities, office expenses, insurance and dozens of other costs but receiving no payments. Further, SSD attorneys only get paid if we win past due benefits and that’s if they decide to pay us. I currently have 7 or 8 cases that I have won, with my fees approved by the judge, but SSA won’t release the money. No one returns my calls and who knows if I will ever get paid. SSA even charges attorneys a “user fee” to withhold and pay attorneys our fees directly.
Speaking for myself, but I suspect most of my colleagues feel the same way, I am less likely to take on cases where the likelihood of success is not great. If you are in your 30’s or 40’s, with an autoimmune condition, or depression, or if you can’t afford to go to the doctor, you are going to have difficulty finding a lawyer to take your case.
If the fee cap was $10,000 or $12,000 you would find more attorneys willing to take on more challenging cases. By limiting attorneys fees SSA is, intentionally (in my opinion) limiting access to legal help for those who need it most. To be more blunt, SSA’s statistics clearly show that represented claimants have much higher likelihood of success, so by limiting access to legal help, SSA is saving itself money by cutting off claims of disabled people.
Want more evidence of SSA’s “concern” for disabled claimants. Has SSA sent you notice of benefit termination following a continuing disability review? You can elect to have your monthly benefits continue while you appeal but there will then be no past due benefits and if you want an attorney you will have to pay out of pocket. Or you can agree to a cut off of your benefits so there will be past due benefits to hire a lawyer. Then you can wait 12 to 18 months for a hearing with no money to pay your bills or to pay for medical care.
Congress isn’t any help either – they continue to slash SSA’s budget (relative to inflation) resulting in fewer employees to handle more work. According to the Office of Personnel Management, SSA employed 60,422 employees at the end of 2021, as compared to 63,733 at the end of 2008. This is at a time when over 25 million “baby boomers” are retiring every year, all of whom will be filing paperwork with SSA.
The bottom line is that disabled people are not a voting block that Congress cares about so funding the staff and resources for SSA’s disability program is a non-priority. While there are many dedicated and compassionate SSA employees the truth is that the disability system is beyond dysfunctional and, as a whole, member of Congress do not care about you.
Like most disability attorneys, I enjoy what I do and I derive great fulfillment in helping my clients secure monthly benefits that can allow them to live with some level of dignity and stability. I publish the largest Social Security disability YouTube channel on the Internet and I am happy to share what I know about Social Security disability in my videos, on my podcast and on my websites like GridRules.net, MeetaListing.com, ResidualFunctionalCapacity.com and 4SocialSecuritydisability.com.
Only a tiny, tiny percentage of people who view my videos or visit my website actually hire me, and I am fine with that. The feedback I get from my YouTube audience and website visitors is almost completely positive and I am happy to share what I know.
However, I still have to pay the bills so I can only afford to accept cases into my office where I see a reasonable likelihood of success. If SSA wanted to give more disability claimants access to legal help they could make it financially feasible for lawyers to take on more difficult cases. They could make it financially feasible for me to represent a client in a benefits termination case. They are not doing this so a substantial number of truly disabled people will either give up and not bother even applying, or they will try to navigate SSA’s confusing disability process on their own and lose potentially winnable cases.
Attorney Fee Cap Changes for Decisions Issued After November 30, 2022
So, the fees attorneys can charge under a fee agreement remain at 25% of past due benefits with a cap of $6,000 for cases decided prior to November 30, 2022 and 25% with a cap of $7,200 for cases decided after November 30, 2022.
You may wonder why SSA announced the increase in June but delayed the effective date to November. They did this to avoid making attorneys fees subject to the cost of living increase that beneficiaries will get in 2022 due to the recent spike in inflation. How thoughtful!
You know that winning disability benefits will be a fight against a system that is designed to make the disability process confusing, time consuming and arbitrary. Attorneys who do this type of work well are motivated less by money and more by the goal of helping deserving claimants win the benefits they need to survive. I hope you now know that the struggle is systemic in nature and it pervades the entire disability system.
