Do I need a Lawyer for My Florida Disability Hearing?

"I have an administrative law hearing about this next month and was wondering if you know what to expect during this hearing? What should I bring? Do I need to get an attorney (I cannot find one that will not represent me without a $5,000 retainer)?"

At not a single step in the Social Security Disability claim process are you required to have representation on a Social Security Disability or SSI disability claim. This, in and of itself, is a good thing because representation isn't always a necessity.

In fact, there's a fair amount of disagreement, even among disability claim representatives, as to when a claimant should get a representative. If you call some lawyers, or non-attorney representatives, before your claim has been denied, they will inform that you should simply call them back them later after your claim has actually been denied before you sign up with them. Some will even discourage representation until you've been denied the second time on your request for reconsideration appeal.

How do I feel on the matter? I think, for many claimants, representation is completely unnecessary until a claimant gets to the point where a hearing needs to be requested. At the same time, however, I also firmly believe that many claimants will benefit from representation, even at the very earliest stage of the process. Why? Because I've seen so many claimants over many years fail to handle their cases properly. And by that I mean the following:

1. Failing to respond to requests from social security (usually in the form of a 10 day call-in letter) for additional information that is needed by the disability examiner.

2. Failing to attend scheduled consultative examinations (the CE, commonly referred to as a social security medical exam). Missed exam dates can be rescheduled by disability examiners but repeatedly missing appointments can form the basis for a denial on a claim.

3. Failing to provide social security with the information that is needed to fully evaluate a claim, meaning a proper description of one's work history and a full listing of one's impairments (whether you think an impairment is significant or not, you should list it when you apply so the claim can be properly developed--an impairment "popping up" at the last moment can actually delay processing on a case) and a full listing of one's medical treatment sources.

However, by far, the biggest shortfall that I've seen enacted by unrepresented claimants is simply failing to file a timely appeal. Social security gives claimants 60 days in which to file an appeal and they also give claimants an additional five days to account for mailing time. Despite that, an amazing number of claimants actually fail to submit their appeals on time. Without good cause, an appeal cannot be excused for lateness and a claimant will be forced to start over on their claim, losing possibly months of valuable time.

Also, many claimants do not just fail to get their appeals sent in on time, they don't bother to even try to appeal. I think this happens for a variety of reasons, including some amount of despondency, but in cases involving memory problems, affective disorders, and cognitive issues, this is even more likely to occur.

So, long story short, though others may disagree, I think many claimants will benefit from early representation on a claim.

Now, back to your question: Do I need a lawyer for my disability hearing? My opinion is that no one should even consider going to a disability hearing unrepresented.

The truth is, most claimants will not do an efficient job of getting their case ready for presentation before an administrative law judge. They will not get the necessary medical record updates. They will not get their treating physician, or physicians, to complete a medical source statement AKA RFC form on their behalf. They will not know how to evaluate the information in their social security file and that includes the medical records and how their past work was classified.

They will also have no idea regarding how cases are decided--that some cases will meet or equal the requirements of a listing (see Social Security Disability list of impairments) and that others may be approved through sequential evaluation, which basically means that, after a reading of the medical records and the work history, the determination is made that the claimant is incapable of performing work at a substantial and gainful level.

Frankly, the disability hearing is the one step, among the first three steps of the process, in which it is really a bad idea to try to "go it alone".

What should you bring to your disability hearing in Florida? If you have representation, you shouldn't need to bring anything, just show up at the hearing at the appointed time. Even if you're not represented (a bad idea), there's really nothing to bring as the case will be decided on the basis of A) what is in the file that was gathered by the disability examiner and B) what is in the file that was gathered by you or your lawyer or non-attorney representative).

What should you expect? That the hearing will be informal, that it won't really last very long (some are as short as 10-15 minutes), that the judge may be rude (not all are, but some are, and some have a firm reputation for this), that the judge may have experts present (possibly a medical expert, possibly a vocational expert, and possibly both).

Also, if you have a lawyer representing you, don't be surprised if your lawyer doesn't have much to say. It's a common complaint of applicants after a hearing, "My lawyer didn't even say much". Guess what? The case may have been won on the basis of how the case was prepared, not what was said at the hearing. Sometimes, a case is fairly apparent and sometimes the judge has decided to pay the case (approve it) before the claimant and their representative even show up for the hearing.

Howver, that said, if the judge has a vocational expert present, having representation with you at the hearing can allow for proper cross-examination of the expert which can make the difference between your case being won or lost.

Finally, regarding a retainer--you may have gotten confused on this. Retainers do not exist on these types of cases. The social security administration regulates how representatives are paid. And they are paid a fee that is equal to one-quarter of the claimant's social security back pay up to a certain maximum dollar amount.

Obviously, since that fee is based on back pay, it can only be paid after a case has been won. There is no upfront fee for representation. Many firms and companies charge for out-of-pocket expenses, such as for the cost of obtaining medical records, but these must be spelled out clearly in the fee agreement you sign with your representative (all fee agreements must be approved by the social security administration, for the well-being of claimants).

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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