Lawyers, Medical Records, and Social Security Hearings - How attorneys prepare cases and why you shouldn't go alone

Disability lawyers and non-attorney disability representatives do a variety of tasks when they handle a claim, and this includes doing the following to prepare a presentation of the case to a federal judge:

1. A disability attorney will obtain a copy of the claimant's file. This is done for several reasons: to review the file and to see why the claim was previously denied, as well as to observe the materials that were previously gathered by the disability examiner, such as substantiation of the claimant's work history and the medical evidence that was obtained from the claimant's doctors.

By reviewing the work history, the disability lawyer or representative can check to see if the claimant's past work was properly identified. Proper classification of past work (for instance, accounting clerk versus accountant, or light truck driver versus tractor-trailer-truck driver, etc) can absolutely make a difference in the decision reached on a claim.

By reviewing the medical records, the disability lawyer or representative can check to see if the evidence was evaluated properly. It may be that the claimant possesses greater physical or mental limitations than was considered to be the case by the disability examiner. If this is true, it may be that the claimant cannot return to a past job that was indicated by the disability examiner, or it may be that the claimant cannot do some type of other work that was indicated by the disability examiner.

2. A disability attorney will obtain additional medical record documentation. Most applicants for disability benefits are not aware of the fact that, although the social security administration will gather medical records to develop a claimant's case when it is being processed at the first two levels of the system (application and reconsideration), SSA will not gather records for a disability hearing.

Making things even more problematic is the fact that, by the time a disability hearing takes place, many months will have usually passed from the time of the last denial, meaning that there will be no recent medical records in the file. "Recency", of course, is a big component of disability claims in the social security system: without at least some records that are recent (meaning not older than 90 days), a case simply CANNOT AND WILL NOT be approved.

Unfortunately, claimants who are not represented will often not be aware of this fact until they show up for their hearing, which is, of course, too late. However, even claimants who are mindful enough to obtain recent records and submit them to the hearing office will not know when to obtain them.

Disability attorneys typically know, based on various events that occur "along the way to a disability hearing date", when they should start sending request letters to the claimant's various medical treatment providers. The trick is simply to request the records at a certain time so that, when they arrive, they can be submitted to the hearing right before the hearing takes place. Claimants who do not know "the right time" for gathering records will usually get medical record updates far too soon, so that when the hearing occurs there are still no recent records in the file.

Additionally, claimants who go to hearings unrepresented will not typically know how to obtain a medical source statement from their treating physician to present to the administrative law judge who is assigned to their case. It is simply not sufficient to try to obtain a simple undirected statement from one's doctor to take to a hearing.

The statement obtained should satisfactorily address the claimant's level of functional restrictions in a wide variety of areas. And this is precisely why many disability attorneys and representatives use a pre-formatted form for the doctor to complete.

The medical source statement form, also known as a residual functional capacity form, will usually resemble a check-off style form, but it will allow the claimant's physician to provide the judge with the information that is needed to support an approval determination. Of course, most experienced and competent disability attorneys and representatives will have their own individualized forms ready for the hearing preparation process.

To address a basic question, can a person win a disability hearing if they go without representation? Yes, however, the chances of winning will be significantly less due to the inability of most claimants to properly prepare a case for presentation to an ALJ (administrative law judge).

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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