Why You Should Hire a Social Security Disability Lawyer

Why Should You Hire a Social Security Disability Attorney?

For many people, filing for Social Security Disability benefits can be a complicated and confusing process. Many applicants wonder if they should hire an attorney to help guide them through that process. Social Security (SSA) does not require you to have an attorney, and, in fact, people have won their cases on their own. But, does having an attorney make a difference in whether an applicant wins or loses Social Security disability benefits? During Congressional testimony, California Congressman Robert T. Matsui stated:

“Professional representation is a valuable, and indeed vital, service. The disability determination process is complex. Claimants without professional representation appear to be far less likely to receive the benefits to which they are entitled. For example, in 2000, 64% of claimants represented by an attorney, but only 40% of those without one, were awarded benefits at the hearing level.”

Simply put, at the hearing level, you can improve your odds of winning your Social Security Disability case by more than 50% if you are represented by an attorney. Many people have never hired an attorney before and the decision to hire one can be daunting. Naturally, you will have many questions. If you are considering hiring an attorney to help you with your Social Security Disability case, here is some basic information to help with that decision.
How Can I Afford to Pay An Attorney?

Many people applying for SSA Disability benefits, especially those who have been denied at the initial application level, have not worked for a while. Therefore, the number one question on people’s minds is, How can I afford to pay an attorney when I am not working?” The answer is simple: you only pay an attorney’s fee if you win your case. Generally, a disability attorney will represent clients on a contingency basis. That means you do not pay an attorney anything in advance and you do not pay an attorney a fee if you do not win your case.

The SSA and federal law set attorney’s fees in disability cases. The standard fee agreement most disability attorneys use states that the attorney’s fee is contingent upon winning your case. The fee is 25% of all past due benefits, up to a maximum of $6,000, or whichever is less. Thus, depending on the amount of your past due benefits, the attorney’s fees are usually only a small portion of the benefits you receive.
How Can A Disability Attorney Help Me?

There are several ways a disability attorney can help you. A disability attorney will help you understand the SSA Disability process. Filing a claim is just the first step in what is often a long and frustrating process. There is a lot of paperwork to fill out, deadlines to meet, and documentation to assemble. Claims are often denied because paperwork was not completed properly, a deadline was missed, or evidence was not obtained or reviewed. A disability attorney will guide you through each step in the process.

A disability attorney will also help you develop a strategy that both of you should follow to win your case. Many SSA Disability claimants file an application and then simply do whatever SSA tells them to do. This is often not enough to win disability benefits. It is important to understand what is necessary to prove your case and how you will go about winning it. The sooner you know this, the sooner you and your attorney can work together to execute the strategy and increase your chances of winning.
Conclusion

If you are contemplating filing a claim for SSA Disability benefits, it is wise to consult with an attorney. The consultation shouldn’t cost you anything except your time. And, by understanding the SSA Disability benefits process and having a strategy, you can significantly improve your chances of winning your case. .

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The New "Federal Reviewing Official"

A new position at the federal level called the “Federal Reviewing Official," will be created. This Official will review initial DDS determinations upon the request of the claimant. For a long time, there have been complaints that initial determinations were being made inconsistently, unfairly and inaccurately. The new Federal Review Official will seek to ensure that determinations are made correctly at the beginning stages of the Social Security Disability process. This Official will have the authority to make a decision as to whether an individual is disabled. The Federal Review Officials will be attorneys, centrally managed, and better suited to perform the function of documenting evidence and writing legally sound decisions as to benefits. An individual may submit evidence at any time while the Official is reviewing their case, even up until the decision is issued. An individual may request review by a Federal Reviewing Official within 60 days after receiving notice of their initial denial. Further, under this new rule, if a claimant does not make a request for review within these 60 days, they can still request an extension of time to do so even after the 60 day period has lapsed.

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Evaluating Severity of Mental Impairments

John M. FitzGerald

When evaluating the severity of mental impairments in a Social Security Disability or SSI claim, The Social Security Administration (SSA) must follow a specific technique at each level in the administrative review process.

The technique is meant to identify the need for additional evidence to determine impairment severity, consider and evaluate functional consequences of the mental disorder as relating to ability to work, and to present findings in a clear and consistent manner.

SSA first evaluates pertinent symptoms, signs, and laboratory findings to determine whether a medically determinable mental impairment is present. If determined that a medically determinable mental impairment exists, SSA must specify the symptoms, signs, and laboratory findings that substantiate the presence of the impairment and document findings.

The degree of functional limitation resulting from the impairment is then rated.
Assessment of functional limitations is a “highly individualized process” that requires consideration of all relevant evidence to obtain a picture of overall degree of functional limitation. All relevant clinical signs and laboratory findings are considered, along with the effects of symptoms, and how ability to function may be affected by factors such as chronic mental disorders, structured settings, medication, and other treatment.

The degree of functional limitation is based on the extent to which one’s impairment interferes with ability to function independently, appropriately, effectively, and on a sustained basis. Thus, such factors as the quality and level of overall functional performance, recurrence of episodes, the amount of supervision or assistance one requires, and the settings in which one is able to function must all be considered.

SSA has identified four broad functional areas in which to rate the degree of functional limitation: Activities of daily living, social functioning concentration, persistence, or pace, and episodes of decompensation.

The first three functional areas are rated using a five-point scale:
None, mild, moderate, marked, and extreme.

The degree of limitation in the fourth functional area is rated using a four-point scale: None, one or two, three, four or more.

The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.



After rating the degree of functional limitation, the severity of one’s mental impairment must be determined. If the degree of one’s limitation in the first three functional areas is "none" or "mild" and "none" in the fourth area, the conclusion is one’s impairment is “not severe,” unless evidence indicates there is more than a minimal limitation in ability to do basic work activities.

If one’s mental impairment is severe, it is then determine whether it meets or equals a listed mental disorder. This is done by comparing the medical findings and rating the degree of functional limitation to the criteria of the relevant listing. At the initial and reconsideration levels of the administrative review process, the presence or absence of the criteria and the rating of the degree of functional limitation is recorded on a standard document, known as the Psychiatric Review Technique.

At subsequent levels, the presence or absence of the criteria and the rating of the degree of functional limitation is recorded in the decision, and must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment. The decision must also include a specific finding as to the degree of limitation in each of the functional areas described above.

If determined that a severe mental impairment neither meets nor equals a listing, one’s residual functional capacity is then assessed at step four of the sequential evaluation process, as in any other case.


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Long Term Disability Insurance

Although it is less well known than life insurance, most experts agree that disability insurance is just as important. And while most people have insurance that covers their medical expenses in the event they become sick or injured, they are not prepared for the lost wages that accompany the inability to work.

Though the terms of each plan vary depending upon the policy, disability insurance is a contract-based program intended to protect future income in the event the insured becomes disabled or unable to perform the duties of his or her occupation.

There are generally two types: short-term disability, for injuries or illnesses lasting less than 6 months, and long-term disability. Many experts contend that long term disability (LTD) insurance is the most important insurance one can own.

Potential sources of such programs include employers, unions, banks and credit unions, credit cards, and other forms of insurance policies available through private brokers. The terms of most such policies are governed by the Employee Retirement Income Security Act (ERISA). Oversight is regulated by the Employee Benefits Security Administration, under the auspices of the U.S. Department of Labor.

Typical LTD insurance replaces 50-70% of predisability earnings, usually with a monthly maximum that reduces the overall percentage of salary received. Some policies provide for up to 80% of monthly earnings. The payment amount is set at the time the policy is purchased.

As with any other form of insurance, insurance companies often try to get out of paying a claim. Many LTD litigators are of the opinion that some policy language is intentionally vague, and that certain categories of contention are built in. For example, mental illness, or certain conditions diagnosed by only subjective conditions, such as Fibromyalgia or chronic fatigue syndrome, may be points of contention.

Unlike the regulations that govern Social Security disability findings, the opinion of a treating physician in an LTD case is afforded no special consideration. Courts have ruled that reliance upon the opinion of an independent medical examiner is perfectly acceptable. Other arguable points may center around pre-existing medical conditions, or injuries from dangerous activities, as these are usually excluded from coverage.

Most policies define disability in terms of “own occupation,” “any occupation,” or “partial disability.”

“Own occupation” provisions usually state that a person unable to perform his or her own occupation due to sickness, injury, or pregnancy may collect benefits for up to 2 years until able to return to work.

“Any occupation” policies usually contain language to the effect that the disabled policy owner must return to work when able, even if not in the same capacity as before. In other words, the policy owner must be disabled from all occupations. The length of payout varies by policy, some for 5 to 10 years, and some up to age 65, with the latter being preferable.

A partial disability results if a person is working at their own occupation but unable to earn more than the “own” or “any” levels.

Still another point of contention lies in the definition of “own occupation,” because many policies provide that it is not limited to a specific job with an employer, nor to even a specific area of specialization, interest or expertise within the general occupation. Instead they look to the essential tasks, skills, knowledge and abilities generally required to engage in a particular occupation.

There may be other provisions that affect benefit amounts. A person who works while disabled may still be entitled to benefits, but subject to offset. Most policies also provide for an offset for other forms of income, including Social Security Disability, State or Disability, workers’ compensation or other group insurance coverage.

If a claim is denied, the policy owner has certain appeal rights. The first thing he or she must do is obtain copies of the plan details and all of the documents upon which the insurer relied in denying the claim. There are certain penalties if the plan administrator fails to provide the plan documents in a timely manner.

There are statutes of limitations, which may differ according to State legislation, or even contained within the contract itself. Certain medical examinations may be required to overcome the denial decision. The terms of the policy can be complicated, especially to persons who have recently become disabled, and may not be in the best position to fight for their rights. At these times a knowledgeable attorney is indispensable in developing the case and getting the denial reversed.

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What Can I Do to Win My Social Security Disability Case?

There are several things claimants can do to improve their chances of winning their Social Security Disability or Supplemental Security Income case. The key is in the presentation of the evidence that comes to comprise your file - the documents upon which the decision will be based.

Your file contains several types of documents, pertaining to everything from timeliness of filing, to jurisdiction, to vocational assessments, to earnings records, to medical records. Many of these you have no control over. But there are many that you do. So it is vital that you exercise some level of control over those documents that you can. This is where the advice of your attorney can be critical.

One aspect of the case over which you have a good deal of control is your medical treatment. It is crucial to maintain consistent medical treatment. Remember that the standard of disability that SSA uses as a bar is very high. It means not only that you are no longer able to do the work you've done in the past, but that you can't do any other work that exists in throughout the national economy.

It is up to the claimant to prove the fact of disability, and this can only be accomplished through clinical medical evidence. Your subjective complaints are considered, but are not given very much weight. The opinion of your doctor is given some little weight as well, but it will not make the difference. What is vital is clinical medical evidence - fact as opposed to opinion.
Be aware that your doctors make notes in your records of their observations, as well as your complaints. This is not the time or place to be brave. Many an unfavorable decision makes note of the fact that the claimant said he was "feeling better," whatever that means.

But from the SSA point of view, a person who cannot do any work at all is, for whatever reason, in pretty bad shape, and should be seeking consistent treatment and relief. It is logical, for example, for a claimant who alleges significant levels of pain to seek relief by whatever means is available, including pain-killers, therapy, injections, or even surgery.

It is also important that you comply with the instructions and recommendations of your doctors. If an adjudicator or judge wants a reason to deny your claim, they will glom onto whatever they can. So if your doctor prescribes you medicine and you don't take it, it can be held against you.
Cooperate with your attorney in making sure all relevant records are known about and submitted to SSA. Keep in mind that a disabling impairment for SSA purposes is one expected to last at least twelve months or result in death. Not every condition for which you've sought treatment is relevant. The time you cut your finger or had the flu five years ago will not have much bearing on your case, but it is best to let your attorney review your records and present your case in the most favorable light possible.

It is also important to avoid alcohol, illicit drug use, and in some cases, even tobacco. If it is determined that something you are doing is contributing to your disability, and if you stopped doing it your condition would improve, this will be held against you. So if you can't walk a block without shortness of breath, but continue to smoke two packs a day, or are depressed but continue drinking alcohol, or are bipolar but on cocaine, it may be determined that if you stopped doing these things you would get better, and your claim denied.

There are other documents in your file over which you can exercise control. SSA will have you complete adult function reports, stating how you spend your day, and your activities of daily living. Once you have completed these forms and submitted them, they become a permanent part of your record. Any contradiction of them later will have to be explained, and may go to credibility. If a judge doesn't believe that your impairments are as limiting as you say they are, your case is sunk.

Your earnings record is a vital piece of evidence in your file. Be aware that if you have worked for an employer or filed taxes, SSA will have a record of it. If you have earned income after the date you alleged you became disabled, it will have to be explained to the adjudicator's satisfaction. If you have engaged in substantial gainful activity ($940 per month in 2008), your case may not progress beyond the first step of the process. This is also vital for SSI cases, because if you have too much income or too many resources, you will not qualify for benefits.

One other thing you can do to win your case: do not give up! SSA has become notoriously slow. Cases can sometimes linger for three years or more. In the meantime, claimants have not been able to work, have long ago exhausted their savings, have sold their belongings, lost their homes, etc. It is frustrating. But do what you can. Write your congressman. Believe it or not, they do respond, and SSA has a special process they follow when they receive congressional inquiries. Just don't give up.

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