If I get denied disability, should I get a lawyer?

Getting a lawyer after your disability claim is turned down

If you get denied for SSD or SSI, and the next appeal you would file is for a hearing before an administrative law judge, then you should absolutely get a lawyer. This is for a multitude of reasons. You will not likely know anything about medical vocational rules or how medical evidence is evaluated, or what kind of statement should be obtained from a doctor who has treated you. Someone who handles disability claims professionally for a living will, however.

It is for this very reason that the person you get to work on your case should be someone who specializes in disability claims only. You will need someone who is very familiar with Social Security rules, regulations, and case law, not to mention how decisions are made by disability examiners.

If your claim was denied on a disability application, you can put off getting representation. But'most claims that get denied on an application also get denied on a reconsideration appeal, which comes before the hearing. So, it still makes sense to get a disability lawyer immediately after you get your first denial.

After you first get denied

If your claim is denied, you probably want to get your appeal filed as soon as possible. You have 60 days to get the appeal submitted (actually, this applies to any appeal in the disability system). But its best not to wait. The sooner you get the appeal filed, the sooner you can get a decision.

In 40 of the 50 states, the first appeal will be a reconsideration. That is typically overwhelmingly denied (that national average seems to be around 90 percent, though it varies in individual states). If it is denied, you should consider filing the second appeal, a request for a hearing before an administrative law judge. Statistically speaking, the odds are good for most claimants, especially with the outcome they experienced at the initial claim and reconsideration levels. It is absolutely worth doing.

Should you get a lawyer or a non-attorney disability representative (many non-attorneys were former SSA employees and disability examiners, some were even former hearing office personnel)? That's a good question. If you get denied on a reconsideration and the next step is to request a hearing, my personal opinion is that you should immediately get representation. Going to a hearing alone is (again, in my opinion) quite foolish. Individuals wait a very very long time to get to a hearing after requesting one. And to show up with no knowledge of how the system works, how decisions are made, how evidence is evaluated etc etc is not the wisest route to take.

Another way to put it is this: why would someone wait 1-2 years to get their hearing date for a hearing event that may last only 10 minutes and completely waste that opportunity because they walked in with zero preparation and zero knowledge? There are individuals who go to hearings unrepresented and win and that may be because their case is a "slam dunk", i.e. it never should have been denied in the first place. But that fact does not negate the significant risk of going to a hearing alone.

I have heard/read many individuals state they did not want to pay a fee that is equal to 21% of their back pay to a lawyer (up to a maximum that is currently $6000). Well, if a person ends up losing their case, in hindsight that 21% was probably not a bad tradeoff for enhancing the chances of winning.

The issue of representation is really a no-brainer. The issue within that issue is when to get representation. If you are headed to a hearing, definitely. Before that, it is debatable. Some reps will not do a whole of anything prior to a hearing. However, that said, some representatives will actually try to develop a case at the initial claim or reconsideration level, win it faster, and save their client many months of waiting to get monthly benefits. So, it might behoove a person to ask a prospective representative if that is something they do.

Also, there are many people who file for disability, get denied, and then totally drop the ball. They fail to file their appeal timely. Then if they later pursue the claim they have to start over with a new application. That means a lot of wasted time and effort. Obviously, having representation sooner helps avoid that because someone is handling the case who will file the appeal. And, certainly, there are instances where a person will fail to file their appeal timely because there are memory issues, or depression. These individuals may benefit strongly from early representation.

Finally, if a person decides to get representation, they may find it helpful to get someone local. Being represented by someone 800 miles away is not the best option, in my option. It is also more expensive since these representatives will try to recover travel and related expenses from the person they flew in to represent.

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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