Questions about my Appeals Council appeal and the way my disability lawyer is handling my case

Hi, I'm very concerned my case was misrepresented from the start. I hired an attorney as my illness causes neurological issues and I wasn't comfortable completing the intial form. I was told I had to do it myself and wasn't told to list all of my medical conditions. I was denied and then went to hearing. The day of the hearing I was suffering many neurological issues and struggled with the judge's questions. My lawyer did not step in even though I warned him this was a possibility. The attorney would not allow me to have any supportive witnesses. I was denied at the hearing level due to lack of medical evidence. They did say there was only one job I could perform.

The attorney has filed an appeal, but a few months after I was finally fully diagnosed with a rare illness that was causing my symptoms and explains my neurological issues. Very few doctors are aware of this rare disease and this is why it took me four years to be diagnosed properly. I called my attorney and asked if we could submit this new evidence and he said no, it was too late. He stated once it was sent to Virginia we couldn't add anything. I did call the disability office and she stated we can always add to my file until the case is closed. So now I'm very confused.

I called disability office again to ask how many work credits I have but they would not answer me. My lawyer said I could not reppply as I don't have enough work credits because all of this has taken so long.

So the questions I have is why did attorney say I can't submit new evidence to the appeals council when disability said I could? Why can't I find out how many work credits I currently have (it no longer shows up on your yearly statement).

I'm very concerned my attorney is not representing me correctly, is it too late to get a new attorney involved? (I was shocked at my hearing that my attorney did not understand my health issues, and he did not make me aware that at one point I did have enough work credits to reapply).

Will I ever have an opportunity to speak on my behalf again?

At this point is there anything I can do to support my case? I'm still waiting to hear back from appeals counsel. Appreciate any help you can offer.

Hi. I am sorry to hear about your difficulties. The reason your attorney said you could not introduce new evidence is because the appeal you seemed to have filed is for an Appeals Council review of the judge's hearing decision. By definition, they will only review his or her decision and the evidence that was available at the time of the hearing. And that, unfortunately, is assuming they review the decision. Most requests for review are denied. Meaning they do not even, in most instances, look at the case.

When you say you called the disability office, I am assuming you called the agency where disability examiners are based. In most states, this is DDS, or disability determination services. I am a former examiner myself. I can tell you in all candor they would have little knowledge of what happens to a case at the hearing level or beyond since they only deal with initial claims and reconsideration appeals.

Generally, when a person file a new claim the problem with that doing is that they may give up their earlier filing date and the opportunity to receive the backpay that is related to that. However, in the present environment, this issue is somewhat moot since a claimant cannot file a new disability claim while simultaneously having an outstanding appeals council appeal. This was possible in prior years, but no longer.

It goes without saying that a person should proceed with caution with regard to appeals and speak to their representative before doing anything arbitrarily. In this case, your representative has indicated that your DLI, or date last insured (related to your work credits) will be an issue.

As to what the attorney said or did not say at the hearing, I cannot comment much. Many claimants believe that their disability attorney should be more vocal or energetic, perhaps because they associate disability hearings with court room proceedings. But these are administrative hearings and the attorney usually knows what to say and when. In many hearings, very little is actually said. The judge will have read the file before the hearing takes place and this accounts to some extent for that.

As to representation, a claimant always has the option of changing representation. However, I would proceed carefully on this if you so choose. At the very least, you should speak to your representative and address your concerns with him or her. Very often, I think, it does seem as though a representative does not understand a claimant's medical conditions. However, it is good to keep in mind that Social Security is not really focused on your diagnosis but rather the limitations posed by your condition. And this is why disability representatives focus on certain types of information specifically. Again, you can bring this up if you speak to your representative.

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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