Should you hire a Non-Attorney Disability Representative instead of a Lawyer?

The Rationale for getting Disability Representation

The reality is that the federal disability system is not very favorable to most claimants. While the process is not overtly adversarial and hostile, when you consider the high rates of denial and the fact that claims are often denied at the application and first appeal level, and then effectively reversed many months later at the hearing level (making the claimant go through many months of financial distress for no logical reason), "adversarial" is a term that easily fits.

Most individuals who apply for disability will get denied for disability benefits. This is the case for approximately 70 percent of all applications for disability, regardless of their state of residence, and it is further the case for more than 80 percent of all first disability appeals (the first social security appeal is the request for reconsideration).

For the majority of claimants who are denied for SSD or SSI, the way to win disability benefits will be to pursue their case to the level of a social security hearing that is presided over by an ALJ, or administrative law judge.

ALJ disability hearings require preparation, particularly due to the fact that from the time a case is denied at the reconsideration appeal level until the time that a hearing is held (this time span can often be somewhere between a year to two years), the social security administation will do nothing to assist the claimant's case.

For those who are unaware of how disability cases are handled, it should be stated that on a disability application and on a request for reconsideration, SSA will gather the claimant's medical records and have them evaluated.

SSA will also, by use of a disability claims examiner (a specialist whose job is conceptually similar to a health insurance adjuster, meaning they are tending the interests of the "company", versus the claimant), analyze the claimant's work history and obtain questionaires from the examiner and, potentially, other individuals who know the claimant and are, thus, aware of the claimant's condition and medical limitations.

However, all of this case preparation completely ends when a case is turned down at the reconsideration appeal level. At that point, when a case is headed toward a hearing, the entire responsibility for getting the case thoroughly prepared will fall to the claimant, or their disability representative, who may be a disability lawyer or a non-attorney representative.

What does preparation for a disability hearing include? Obviously, it includes gathering all the necessary supporting documentation. In the one to two years between the reconsideration appeal and the holding of a hearing, there will usually be a considerable amount of newer records to obtain and have forwarded to the hearing office (because, as was stated, the hearing office will not do this for the claimant).

How Disability Representation provides the greatest advantage for a case at the hearing level

However, disability hearing preparation includes more than simply gathering records and making copies of them for the judge. Getting a case properly developed so that it can be won includes analyzing what has happened previously in the case at the earlier levels. This means looking at the decisions that were made by disability examiners, and looking to see if those decisions contain mistakes in judgement (for example, in how a claimant's functional physical or mental limitations were rated) or errors in the application of certain rules (more specifically, the medical vocational grid rules that direct decisions of "disabled" or "not disabled").

In addition to this type of preparation, the individual presenting the case to the judge at the ALJ hearing will need to be able to decisively answer questions regarding the claimant's work history and normal daily activities. This by itself may not seem like a difficult proposition but it can easily become an arduous and perplexing one for an unrepresented claimant when such questions are entertained at a hearing where the judge has chosen to have a medical expert and/or a vocational expert appear to provide specialized testimony.

These expert witnesses will usually offer their own analysis and interpretation of the claimant's medical limitations and vocational job opportunities. And with this testimony they will often respond to hypothetical scenarios brought forward by the judge. Understanding, interpreting, and, more importantly, countering the assertions of expert witnesses is typically a task best suited to an experienced disability representative.

Does it matter if your Disability Representative is an Attorney or a Non-Attorney?

The simplest answer to this question is no. From the standpoint of the social security administration it does not matter if one's disability representative is a disability attorney or a non-attorney. This is because "social security law" is not law per se at the first four levels of the system (disability application, reconsideration appeal, ALJ hearing, and Appeals Council Review). Therefore, for this reason, one's representative is not required to be an attorney.

The fact that a disability representative is not required to be an attorney makes perfect sense when one considers the fact that the adjudicator (decision-maker) on a disability application is a disability examiner. Disability examiners are not lawyers but have been specially trained to evaluate medical and vocational information in the context of Social Security Disability and SSI criteria in order to make decisions.

"Social Security law" only becomes law when a case gets to the fifth level of the system which is a federal district court appeal. At this level, one's representative must be an attorney. However, most claims are decided favorably by the time an ALJ disability hearing has been held. And at such hearings, the representative may be a non-attorney.

Many non-attorney representatives are former social security administration employees, including former disability examiners. As such, they are uniquely qualified to handle disability claims since they have an inside perpective on what SSA is looking for when it comes to approving disability claims.

Can having a non-attorney be preferable to having an attorney represent a claim? Yes, and this is true when an experienced non-attorney is compared to an attorney who only handles disability cases sporadically or who has a mixed practice that includes traffic or criminal cases. Social Security regulatory procedure is complex enough that a claimant should really choose a specialist, such as a former disability examiner, to handle their case.

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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