Opportunities for JDs and EJDs in Administrative Litigation: Social Security Disability Income Claims Appeals
One of the hottest areas within administrative litigation in which both Juris Doctor (JD) and Executive Juris Doctor (EJD) graduates may be eligible to practice is Social Security Disability Income Claim Appeals. (For an introduction to the opportunities in administrative litigation for lawyers and non-lawyers alike, see the post "Opportunities for JDs and EJDs in Administrative Litigation: An Overview."
SSDI is the single biggest administrative litigation arena in the country. As of 2015, the Social Security Disability Income (SSDI) hearings backlog exceeded 850,000 according to the "official" count issued by the Social Security Administration (SSA). Unofficial sources within SSA indicate that the real number is pushing 1 million. Five years ago, when the hearings backlog was 700,000, SSA launched a number of initiatives designed to reduce the backlog. Needless to say, these did not succeed.
SSDI claims are rising at a rate of 10% per year and now number more than 3 million new filings a year. SSA's Office of Disability Adjudication and Review (ODAR), the body that hears SSDI claims cases on appeal, has 1,350 Administrative Law Judges (ALJs) and is planning to hire a substantial number of additional ALJs. They hold hearings in more than 160 locations nationwide, as well as-increasingly-via videoconference and even through software such as Skype. This makes for very favorable practice conditions for Social Security Claimant Representatives (the advocates who represent SSDI claimants in hearings). It provides tremendous geographic flexibility.
Despite the large and growing number of ALJs, claims keep arriving at ODAR faster than they can be processed. One ALJ indicated that his office is receiving an average of four new claims a day per ALJ and is under severe pressure to decide two claims a day.
Claimants who hire representation early in the claims process have a 50% better chance of being awarded benefits at the initial level.
One of the great advantages of SSA cases being conducted under the Federal Administrative Procedure Act (APA) is that 32 other federal agencies also operate their administrative hearings under the APA. That is a big advantage for attorneys and other eligible representatives who want to expand their practices beyond SSDI.
Fees are currently capped at $6,000 per case. Given the amount of time involved in case preparation and the actual hearing, this is a handsome remuneration.
If you are an attorney, the federal government will act as your fee collector. Any sole practitioner or small firm lawyer can tell you that they must spend a great deal of time collecting fees from clients that they have earned.
Claimant Representative fees are customarily paid from back awards to the date the claim was initially filed. Given the lag time between filing a claim and the ALJ decision following a hearing, the back award can be a substantial sum. That makes it easier for non-attorney Claimant Representatives to collect their fee.
Until now, the "win" rate on appeal approached 70%. However, there is now a great deal of pressure on ALJs to reduce this rate because the SSA Disability Trust Fund is fast running out of money.
SSDI hearings are among those in which there is no opposing counsel, which results in a considerable reduction in Claimant Representative stress levels.
Synergies with Related Practice Areas
There is a natural, almost seamless process and evidentiary rules affinity between SSDI claims and Medicare appeals, thanks to the Administrative Procedure Act. If you decide to practice in one area, it may make sense to expand your practice to the other one.
At the same time, there is a "content" affinity between SSDI claims and veterans' disability claims, both being at the nexus of law and medicine. Any attorney or Claims Representative or Claims Agent should seriously consider practicing before both SSA and Board of Veterans Appeals (BVA).
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