By David S. Bross, Esquire
One of the most common questions I am asked by people applying for Social Security Disability and SSI benefits is: “Do I need a lawyer for this or can I just do it on my own?”
My first response is this: “You need a lawyer only if these benefits are important to you!”
The claims process begins with the filing of an application and various related documents, as well as an interview. As I have discussed in earlier columns, the majority of claims are denied and a process of appeals is undertaken, often culminating in a hearing before an Administrative Law Judge. Sometimes appeals are necessary beyond the hearing stage and cases may have to be resolved in federal court.
Although Disability and SSI claims do not involve what people think of as “going to court,” the Social Security regulations which govern the claims process, are unique and complex. Consequently, you cannot always rely on “common sense” to understand whether or not you meet the strict definitional requirements of “disability” under the Social Security Act. For instance, it is usually not good enough to merely supply a doctor’s report with a statement that you are “disabled,” as there are usually very specific criteria set by the Social Security Administration (SSA) to determine whether you are in fact disabled under its rules and regulations. In short, the process is not as simple and easy as it may look.
Although an attorney’s help generally becomes most critical when the claim reaches the “hearing” stage, an attorney’s involvement early in the claims process can sometimes make the difference between winning and losing a case later on. Early involvement allows the attorney to exercise some degree of “damage control.” Also, since SSA has put new emphasis on making the “right” decision at the earlier stages, by applying the same legal rules at these earlier stages that used to be applied only at the hearing stage, a lawyer’s help at the beginning can be critically important.
A Social Security attorney can also help you with a number of common issues, such as the ability to revive earlier claims, obtaining benefits for dependents, and dealing with “return to work” scenarios.
Therefore, although you can file an appeal without being represented by counsel, applicants generally have more to gain than to lose by hiring an attorney as soon as possible. In fact, persons represented by an attorney received favorable decisions 62% more often than persons who did not hire an attorney. (Highlights for fiscal year 1998, “Social Security Bulletin”. Vol. 62 No. 1 (1999).
Most attorneys charge a “contingent fee,” a fee paid only if they obtain benefits. The most common type of fee charged is 25% of back benefits, up to a maximum of $6,000. Nothing comes out of current monthly benefits. You will usually be expected to reimburse expenses for items such as medical reports and records, but these expenses tend to be very modest. In some cases, attorneys may use a different type of fee arrangement when appropriate. However, fees may only be charged to a client if and when the Social Security Administration approves the fee. Therefore, because attorney’s fees are strictly regulated, you can get an experienced attorney at a very affordable cost.
Although there is a great variation from case to case, here are some examples of things Social Security attorneys can do for you:
- Advise you as to all of your rights under the Social Security Act (something which the overworked people at your local Social Security office may not always be able to do);
- Participate in the ALJ (Administrative Law Judge) hearing through direct examination of you and your witnesses, cross-examination of any vocational and medical experts, making oral arguments, etc;
- Review and evaluate your medical situation as it pertains to SSA’s regulations for qualifying Disability and/or SSI;
- Obtain and review additional medical evidence from your physicians;
- Advise you as to your rights to “reopen” any earlier claims and to maximize your benefits;
- Obtain and review documents from your Social Security file;
- Review actions taken by the SSA and evaluate if they are proper;
- Ensure that appeals are filed timely;
- Prepare and submit appropriate evidence to SSA prior to, at the time of, or following any ALJ hearing;
- Prepare you and your witnesses for the ALJ hearing;
- Prepare and submit legal memoranda and briefs to the ALJ, Appeals Council, etc;
- Request a review of the ALJ decision, if necessary, by the SSA Appeals Council or beyond to federal court;
- Effectively communicate with your disability, health, or other insurers to obtain documents, maximize coverage, and otherwise protect your interests.