Culbertson v. Berryhill, 586 U.S.-- (Jan. 8, 2019)

On January 8, 2019, the U.S. Supreme Court issued a unanimous opinion in Culbertson v. Berryhill, 586 U.S. ____ (2019), holding that 42 USC § “406(b)(1)(A)’s 25% cap applies only to fees for court representation and not to the aggregate fees awarded under §§ 406(a) and (b).” The 11th Circuit decision limiting the fees to an aggregate of 25% is reversed and remanded. 


The Court reasoned that the Social Security Act addresses fees in administrative proceedings separately from those in court proceedings. 42 USC § 406(b), which states that a court may award “a reasonable fee for such representation, not in excess of 25%” of past-due benefits (emphasis added) refers only to the representation described in this section, which is “represent[ation] before the court.” Section 406(a)(1), which involves the use of the fee petition, permits the agency to set any “reasonable” fee. In the case of the fee agreement (406(a)(2)(A)) the fee must be the lesser of 25 % of past due benefits of the amount set by the Commissioner. Although Culbertson’s client paid an EAJA fee as well, the issue of the EAJA offset was not in the question presented and was not discussed by the Court.


The Supreme Court also concluded that the fact that SSA withholds a single pool of 25% of past-due benefits for direct payment is not relevant to the total amount of the fee that can be authorized for representation before the agency or the court. “Any concerns about a shortage of withheld benefits for direct payment and the consequences of such a shortage are best addressed to the agency, Congress, or the attorney’s good judgment.” 

I am very grateful to NOSSCR and all of the attendees at my presentation at the Fall 2018 NOSSCR conference.

The question presented in the brief of the Petitioner, Michael J. Biestek, is

Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.

The Supreme Court docket and links to the briefs in the Biestek case are available at the ScotusBlog.

My treatise, cited in the NADR brief, is the Social Security Disability Advocate’s Handbook.  It contains additional strategies and more detail than Bob Angermeier and I covered at the Thursday, October 18 NOSSCR conference session.  You can buy it online from James Publishing.

A transcript of the oral arguments to the Supreme Court on December 3, 2018 are here:

A Rule by the Social Security Administration on 01/18/2017

We are revising our medical evidence rules. The revisions include redefining several key terms related to evidence, revising our rules about acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising our rules about medical consultants (MC) and psychological consultants (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These revisions conform our rules to the requirements of the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive medical care, and emphasize the need for objective medical evidence in disability and blindness claims. We expect that these changes will simplify our rules to make them easier to understand and apply, and allow us to continue to make accurate and consistent disability determinations and decisions.

Link to Federal Register


These final rules are effective on March 27, 2017.  However, see 

Medical Criteria for Evaluating Mental Disorders

SUMMARY: We are revising the criteria in the Listing of Impairments (listings) that we use to evaluate claims involving mental disorders in adults and children under titles II and XVI of the Social Security Act (Act). The revisions reflect our program experience, advances in medical knowledge, recommendations from a commissioned report, and public comments we received in response to a Notice of Proposed Rulemaking (NPRM).

DATES: These rules are effective January 17, 2017.