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SSDI: When Should You Hire an Attorney?

  [ 253 votes ]   [ Discuss This Article ]
By Scott E. Davis, Esq • www.ProHealth.com • October 10, 2000


Every day I receive email, phone calls and faxes from individuals throughout the country who ask a simple question: Is it worth it to go through the hassle of filing a disability claim?

The next question is always: Do I need to hire a disability attorney to represent me? Before I answer this important question, please allow me to answer the first question.

Should you bother to file a disability claim?

Simple math provides the answer to this question: Assume a claimant is 45 years old and their monthly disability benefit is $1,000.00. If the person never again returns to work, their disability benefits prior to age 65 total $240,000.00! This amount does not include the value of the lifetime health insurance they would also receive through Medicare or Medicaid. It is impossible to place a value on the Medicare benefits alone.

I don’t know too many people who would walk away from that amount of money!

The truth is, the Medicare health insurance benefits alone make filing a disability claim worthwhile. The monthly Medicare premium this year is only $45.50! Some women tell me, “Why bother with Medicare…I have health insurance through my husband’s job.” My response is always, “What if your husband is fired tomorrow or god forbid, dies…your health insurance may be gone.”

Unfortunately, I have spoken with too many people (often women) in their 40s, 50s & 60s whose lives have been devastated financially because they relied on their spouse’s earning potential and did not file a disability claim. Sadly, often times when they finally decide to file a claim years later…it is too late, they are no longer insured for benefits. Don’t let this needless tragedy happen to you!

If you are trying to figure out when you should file a claim with the Social Security Administration (SSA), please see my article titled, Obtaining Social Security Disability Benefits: Where to begin the Process.

Do I need a disability attorney to represent me?

After I have gone through the math on what their disability claim is worth to them and their family, I always ask, “Do you know what you need to prove in order to be awarded disability benefits?” Their answer…not surprisingly, is always, “No.” The next question is, “If you don’t know what you need to prove, why would you try to represent yourself with so much at stake?”

In my opinion, you should consult with and obtain advice from an attorney who specializes in disability law even before you file your claim. You should hire a disability attorney either before or as soon as possible after filing your claim with SSA.

You might say, “I’m disabled and out of work…I can’t afford an attorney!” It is important to understand that you only pay the attorney if and when your claim is approved! In general, you do not pay any money when you hire them. Moreover, after your claim is approved, SSA sets the attorney’s fees, so you can be sure you won’t be overcharged for their services. Because an attorney only gets paid if and when you do…you have nothing to lose by hiring one. The truth is, with the amount of money and health insurance benefits you have at stake--you can’t afford to not hire a disability attorney!

Retain an attorney even before filing your disability claim!

Some people ask, “Why not wait until after my claim gets denied before I hire an attorney?” Indeed, this is a good question, but it assumes SSA is looking out for your best interest and wants to approve your claim! While SSA does approve many claims, its reputation for denying a significant percentage of good claims is well known. The question is…will SSA approve or deny your claim? Statistically, nationwide, almost 70% of initial claims are denied. Upon review (reconsideration), SSA again denies approximately 80%. Thus, your odds of being approved by SSA before seeing a judge are not good.

In the long run, the fact that your claim is very likely to be denied by SSA during the first two stages of review is not as big a problem as what happens to the strength of your case. In my experience, SSA does not review your case with a frame of mind that it wants to approve it...instead, SSA generally looks for evidence to deny your claim. Sound crazy? Talk to almost anyone who has been through the process, I’m sure they will have a story to tell.

Why is your case weaker after SSA gets done with it after the first two denials? For one, SSA will usually send you to one of its hand picked doctors for an examination. This is a doctor who does not know (or care about) you. However, be assured the doctor knows who is buttering their bread. SSA uses the same doctors over and over, month after month to do these examinations. The doctor may do as many as 30 of these exams per month. As expected, the examination is superficial and usually lasts at most 30 minutes; you think it’s a joke until you get the letter from SSA that your claim has been denied.

Unfortunately, now your claim is not as strong because a “doctor” has evaluated your condition and determined that it is not severe enough to prevent you from working. Guess what...you have now also given the judge evidence he/she can use to deny your claim. This is the exact scenario most claimants confront and one that should be avoided! Did you know that Federal law and SSA regulations provide that your doctor (if willing) can do the examination instead of theirs? You probably didn’t, because most SSA employees and judges routinely don’t follow this regulation!

Your case is also not as strong because you never had a strategy to win your case. For example, do your doctors support your claim and do you have evidence that they do? Have you ever talked with them about your inability to work? How often do you see your doctors and how well documented is your medical condition and the resulting limitations? In other words, do your medical records tell the same story as you regarding your inability to work? Do your former boss and/or co-workers/friends support your claim and do you have evidence that they do? Before you begin to feel queasy, understand that most people have no idea how to answer those questions!

Having a good disability attorney involved early in your case to develop a strategy should maximize your odds of winning and minimize any damage SSA may inflict on your case. How early should you have an attorney involved? I believe it’s best to hire one even before you file your claim!

What can a disability attorney do for you? For example, several weeks ago SSA set up an appointment for one of my clients to see their doctor. My client’s case was at the initial stage of review. I objected to the examination and would not let her go because her own doctor supported her claim I had personally spoken with him early in the case).

I arranged for her doctor to do the examination and as a result her claim was approved due to his opinions! I knew (of) the doctor SSA chose and had rarely seen him conclude that someone was disabled. Sadly, had she not known any better and gone to the examination with SSA’s doctor...her claim was certain to be denied. However, her claim was approved because we had a strategy and implemented it!

Another reason to retain an attorney is that statistically, you are much more likely to win your case with an attorney. Nationwide, the average benefit approval rate before a judge is approximately 50% to 55%. However, studies have shown that people who are represented by attorneys win cases at a significantly higher rate than the national average. Many good disability attorneys win approximately 75% to 90% of the cases they take before a judge. I believe the reason good disability attorneys win a higher percentage of cases is due to their knowledge of the complex disability laws coupled with proper preparation of a client’s case.

Almost all attorneys work on a fee agreement which provides that the fee is contingent on winning your case and is 25% of your past due benefits and is capped at $4,000. In other words, if your back benefits total $1,000.00, the attorney’s fee would be $250.00. Or if your back benefits are $40,000, the attorney’s fee is only $4,000.00.

Federal law does not allow the attorney to charge a fee on your future benefits. Before an attorney is paid a fee, SSA and you must approve it! Thus, in determining whether you need to retain an attorney, I refer you to the beginning of the article to the amount you have at stake. You simply can’t afford to not have an attorney involved!

Best of luck in your pursuit of disability benefits and remember never to quit!

Mr. Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. Mr. Davis does represent clients throughout the United States. In most cases a fee is charged only if his client obtains benefits. He invites your questions and inquiries regarding representation via email: harris.davis@azbar.org or telephone (602) 482-4300.






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