Do I Need a Lawyer for My Social Security Disability Hearing?

Although you are not required to have any sort of legal representation at a disability hearing, statistics show that those who have an attorney are far more likely to be approved for benefits than those who choose to represent themselves.

The average individual, particularly one who is suffering from a debilitating physical or mental condition, will not be able to adequately prepare for a disability hearing.

On the other hand, attorneys specializing in representing SSD/SSI claimants will be well versed in disability law, including which medical records are necessary to demonstrate disability; the criteria needed to meet a listing in the blue book (the official Social Security Disability handbook); how to demonstrate, through medical records, an inability to return to prior work or any other work due to diminished residual functional capacity (activities a claimant can or cannot do); and how to use the vocational grid to show that, even if the claimant is capable of performing certain tasks, he is not capable of earning the current substantial gainful activity (SGA) amount each month.

Going to a hearing unrepresented is not advised

Those who are represented by either a qualified disability attorney or non-attorney representative don't have much to do in preparation for a hearing, other than show up. A competent disability representative will ensure that all of the documentation needed to substantiate a claim is in the file and readily available for a judge's review.

Keep in mind that disability judges decide cases based on all the documentation in claimants' files, including that which is gathered by disability examiners'it's best to have someone competent advocating for you who can ensure that your file contains the information needed to counter any negative input from a disability examiner.

Most disability hearings are brief, lasting only about 20-45 minutes, and can be a bit off-putting to claimants because the administrative law judges who decide disability cases can seem unsympathetic--some find them openly rude.

How are disability attorneys paid?

In addition, disability attorneys work more or less on contingency, which means they do not collect payment unless they win the case. The most a disability attorney may collect is 1/4 of a claimant's back pay, and the Social Security Administration has capped that amount at $6,000. True, some lawyers will charge for minor expenses, such as having medical records copied, but these are listed in the fee agreement, which is not binding unless it is approved by SSA. There should be no surprises when it comes to paying your attorney (provided you read the agreement carefully before you sign it).

So, yes, although it is not required, most people need and can afford to have a lawyer represent them at their disability hearing.

Some may even benefit from legal representation at an earlier stage in the process. Although there are many lawyers who will not take a disability case until the hearing stage, there are some who are willing to work with claimants from the moment they file. While early representation is not needed by many, there are nonetheless many, particularly those with mental, emotional, or cognitive medical conditions (depression, bipolar, anxiety disorder, memory loss, etc), who need assistance early on.

The most common mistakes made by claimants that a disability attorney will know to avoid, are:

1. Not supplying a disability examiner with additional information in a timely manner (this request is usually nothing more than a 10-day call-in letter).

2. Not attending a consultative exam (CE), or social security medical exam. Repeated failure to attend CEs without a good reason or without rescheduling the exam could be used as a basis for denial.

3. Not supplying a complete medical or work history, one that includes contact information for all past employers, past job duties, and medical treatment sources.

4. Not appealing a denial. Some claimants do not realize that it is pretty common for disability claims (about 70%) to be denied by DDS, only to be approved on appeal. However, the reconsideration appeal must be filed within 60 days of the initial denial (plus 5 grace days for mailing). A surprising number of claimants fail to meet this deadline.

Failure to comply with any of the above can, at the very least, delay a disability examiner's decision to approve (or deny) benefits, and could be used by a disability examiner as a basis to deny the claim.

About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.

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