Do I Need An SSDI Attorney?

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Subject: YData--Do I need an SSDI attorney?
Date: Mon, 3 Sep 2001


Do I need an SSDI attorney?

You have the right to have an attorney represent you in your Social Security case. Although attorney representation may not be absolutely essential in all cases, statistics have shown that people represented by an attorney have been more successful than people without attorney representation. Whether you hire an attorney is entirely up to you; but you should consider the advantages by examining what an attorney can do for you in your Social Security case.

By law, an attorney can only charge you 1/4 of the past benefits if you win the case, up to a maximum of $4,000. Every case is different. Your attorney's role depends on the particular facts of your case. However, a few things your attorney may do are:

Gather medical and other evidence.

Analyze your case under Social Security Regulations.

Contact your doctor and explain Social Security Regulations to obtain a report consistent with those regulations.

Refer you to additional doctors for further medical reports to support your claim.

Send you to a vocational expert for a report on your ability to work.

Suggest that the Social Security Administration send you to a doctor for a consultative examination.

Obtain documents from your Social Security file.

Review actions taken by the Social Security Administration.

Ask that a prior application for benefits be reopened.

Seek waiver of a time limit.

Request subpoenas to insure the presence of crucial witnesses or documents at your hearing.

Advise you how best to prepare yourself to testify at your hearing.

Protect your right to a fair hearing by objecting to improper evidence and procedures.

Cross-examine adverse witnesses at your hearing.

Present a closing statement at your hearing arguing that you are entitled to benefits under Social Security Regulations.

Submit a written summary of the evidence and argument to the Administrative Law Judge.

If you win, make sure that the Social Security Administration correctly calculates benefits. If you lose, request review of the Hearing Decision by the SSA Appeals Council. If necessary, represent you in a federal court review of your case.

Factors affecting your disability claim

No one can say with absolute certainty whether or not a social security disability claim will be allowed.

There are certain factors that can be predicted, with reasonable certainty, to increase the likelihood of a favorable decision and the actual payment of disability benefits. It is to those factors that the body of this chapter is addressed. As previously mentioned, disability for purposes of receiving social security benefits is determined by whether or not the claimant's disability and other factors fit neatly into the scheme of one of the GRID TABLES". The overwhelming majority of disability claims that are approved, are based on one of the Grid Tables. The following factors directly impact on which table's standards the claimant's disability will be determined.

A. Age of Claimant

The age of the claimant is the single most important determining factor in whether or not the claim for disability benefits will or will not be approved.

Theories: Claimants age 50 or over that due to education and skills are unsuited for sedentary work, often win for that reason. Those who have a history of sedentary work and are below age 50 have a far more difficult time in obtaining a favorable ruling unless they can show that they are unable to sit due to the weight placed on the hip.

The hip is the largest joint in the body and hip pain can be disabling if it is severe.

Appearance: Claimants suffering from severe hip impairments will display a seriously altered and or labored gait. Administrative Law Judges will observe the claimant's walk, limp and any devices such as canes, walkers etc. necessary to walk or stand.

B. Education Of The Claimant

Education has very little to do with whether or not a claimant is allowed disability benefits unless the claimant is functionally illiterate ie: unable to read and write well enough to function in a modern society at the same level as the majority of the citizens. This is possibly the greatest injustice done to those applying for social security disability. There are countless hard working people in the construction or other labor intensive areas that are not illiterate, but do not have a high school education and are unable to compete and qualify for jobs with those who do have a high school education.

C. Work Experience

The claimant's prior work history has a major impact on the determination of the their disability. You are only required to prove that you are unable to perform the same type of work that you have done in the past fifteen (15) years. This can have a dramatic impact on your chances of winning your disability claim. It is essential that the evidence show that you cannot perform the same type of work you have done in the past. Putting together the necessary information to ensure that your evidence will show to the Administrative Law Judge that you are unable to perform the same type of work you have previously done is one of the many things that you can do to increase your chances of winning your disability case. (more will be said later about how to gather the necessary evidence)

D. Physical Limitations

It is not the disease or injury that makes a person disabled as it applies to social security disability. It is rather the physical limits the disease or injury causes in the claimant that determines disability. A claimant may have a disease such as cancer that has a horrible name and sends shivers up your spine, but it is not the fact that the claimant has cancer that qualifies them for disability benefits.

Disability is determined based on how the cancer has placed physical limitations on the claimant. Many people have cancer. Not all people with cancer are disabled.

E. Mental Illness

By the date of the hearing before an Administrative Law Judge there are probably very few social security claimants that stick with the process through the hearing before an Administrative Law Judge that do not have some degree of psychiatric problems. You will have endured months if not years of physical pain, financial devastation, and the day to day difficulties that are part and parcel of having a serious condition that disables you and no doubt has turned your life upside down. It is virtually inconceivable that anyone could survive the process up to the hearing level without at least having some degree of depression as a reaction to their circumstances. In cases where the Administrative Law Judge could go either way in his decision, reactive depression brought on by your circumstances may well be the extra disabling factor that convinces the Administrative Law Judge to rule in your favor.

History Of The Case

The theory of the case is the reason or logic that supports your claim for disability. For each theory that supports the claimant's disability, there is also probably a theory that will deny them their disability determination. It is important to recognize those theories that would be against your case and be prepared to show how they do not apply in your case.

The Effects of Being Disabled

Drugs * Anxiety * Bladder Problems * Lack of Concentration * Colostomys and Illeostomys * Confusion * Depression * Diarrhea * Dizziness * Drowsiness * Eye-Hand Coordination * Fatigue * Grasping * Headaches * Memory Loss * Numbness * Pain * Poor Stress Tolerance * Skin Conditions

Getting Started

The first step in trying to be placed on Social Security disability is to see your Doctor. Ask the Doctor if in his or her medical opinion you are disabled from being gainfully employed or disabled from your present job. If the Doctor states that you are disabled, the next step is to go to your local Social Security office and get the disability forms.

At this time you can also request a phone interview instead of going into the SS office for the interview.

You will need the proper documentation:

Your Social Security card (or a record of your number); Your certified birth certificate; Children's birth certificates (if they are applying); Marriage certificate (if signing up on a spouse's record).

Your most recent W-2 form, or your tax return if you're self-employed; Your military discharge papers if you had military service.

Try to collect all your own medical records. This is very important, because most of the time ALL your medical records are not sent to SS.

Always keep a copy of any of the applications or letters you write to SS. You may need these later.

In most circumstances, the initial SSD request will be denied. You will be notified by mail of the result.

If you receive a letter informing you of your rights and you disagree with the decision rendered in your case, you can appeal the decision. Careful attention must be given to the appeal process. Any mistakes can render the appeal invalid. If that happens, you may have to start from the very beginning by filling out an application, and again submit it and wait for the determination. If the claimant receives 2 SS denials, an appeal can be filed within 60 days and the next step is the Law Judge hearing.

Administrative Law Judge (ALJ)

If an appeal is taken, a hearing will be scheduled for your case. At this stage, having an attorney represent you can be helpful. Testimony will be given by the applicant. Testimony will also have to be submitted by the way of medical documentation and deposition transcripts of the treating Doctors. Additionally, friends, family, and acquaintances can testify as to the disability of the applicant. A vocational expert can also be used to show that the applicant's pain would affect job performance and therefore render the applicant unemployable.

Once the applicant is before a Administrative Law Judge who will hear the applicants testimony, the Administrative Law Judge only will decide if the applicant is disabled. Even when a doctor testifies before the Administrative Law Judge, the finding the applicant to be disabled is a conclusion that only the Administrative Judge can render. The testimony presented to the Administrative Law Judge must be evaluated by that judge to determine the credibility of the witnesses, including medical testimony. If the Administrative Law Judge finds the testimony credible, he or she will issue a decision stating something to the affect, "in consideration of all the probative evidence including testimony of the witnesses and treating doctors to the claimants pain and on the observations of the claimant themselves, I find the claimant's allegations to be disabled to be credible." It is a this point that one will start to receive disability benefits.

If the Administrative Law judge finds that the allegations are not credible, then the claimant and/or applicant loses. At this point another appeal can be taken to get another hearing. At this next hearing, new evidence may be presented as to the applicants disability. Finally, an appeal may be taken to the appeals Council. The observations of the Administrative law judge weighs heavily with the Appeals Council. The Appeals Council will not hear testimony. They will only review the record and not get a chance to see the applicant.

The overall procedure can be lengthy. Numerous hearings can be held by an administrative judge that can last for years. Besides the applicants presentation of the case, the government, the other side in these cases, can present it's own testimony showing that the applicant is not disabled and should not be entitled to disability benefits.

What will I testify about at the ALJ hearing?

1. Medical Condition
2. Medical History
3. Physical Abilities
4. Mental Abilities
5. Education and Training
6. Work Experience
7. Daily Activities

1. Medical Condition The judge will ask how your medical condition makes you feel. You should tell the judge about the symptoms you experience such as pain, dizziness, numbness, nausea or paralysis as well as you can. Before the hearing, you should make notes to yourself about what conditions you have and how they affect you. Don't leave anything out. For example, if your case involves pain, you might be asked:

Is the pain burning, stabbing, crushing, sharp, throbbing, radiating or aching? Do your activities affect the pain? What do you do to relieve pain? What medicine do you take for pain? How well does the medication work? Are there any side effects from the pain medication?

2. Medical History The judge may ask you how often you see your doctor, what sort of treatment your doctor provides, what medication you are presently taking, how often you take each medication and whether there are any side effects.

You may also be asked to describe the symptoms and treatment of your medical condition since it began. You may be asked what your doctor has told you about your problem, but the judge won't ask you medical questions about your disability.

3. Physical Abilities If you have a physical disability, the judge will ask you a lot of questions about what you are able to do. For example:

How far you can walk before resting
How long you can sit and stand at one time during an eight-hour day
How much you can lift.

4. Mental Abilities The judge will ask about your ability to understand, carry out and remember instructions, to use good judgment, to respond appropriately to supervision, co-workers, usual work situations, and changes in your work setting.

5. Education and Training The judge will ask you how far you went in school, if you have had any training in the military, if you can read and write, and if you have had any job training.

6. Work Experience The judge will ask you about the jobs you have had during the past 15 years. If your condition caused you to miss a lot of work or caused you to stop working, you should explain this.

7. Daily Activities The judge will ask you a lot of questions to find out how your disability affects you. For example:

How do you spend your time during the whole day;
How well you usually sleep;
If you take naps during the day;
What things you do around the house, such as cooking, housework, or gardening;
If you go shopping;
If you drive a car;
What hobbies and activities you have now.

You may also be asked how your daily routine has changed since you became disabled. For example:

What kinds of activities did you do before you became disabled that you can't do now?
The nature, location, onset, duration frequency, radiation, and intensity of any pain;
Precipitating and aggravating factors (e.g., movement, activity, environment conditions);
Type, dosage, effectiveness, and adverse side-effects of any pain medication;
Treatment, other than medication, for relief of pain;
Functional restrictions; and
The claimant's daily activities.


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