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All posts by Jonathan.

Changes to the Social Security Attorney Fee Cap – What Does it Mean to You?

The Social Security Administration recently announced a small increase to the maximum attorney fee that lawyers representing disability claimants will be paid. As usual, SSA took a simple idea and made it unduly complicated, causing confusion for everyone.

Currently, if you hire a disability attorney to represent you under a “fee agreement” SSA will withhold 25% of your past due (lump sum) payment with a maximum fee of $6,000 if your case is approved and past due benefits are payable. The lump sum represents your monthly benefits that have accrued while you have been waiting for a decision.

In June, 2022, SSA announced that the fee cap would be raised from $6,000 to $7,200, effective November 30, 2022. This means that in cases decided by SSA prior to November 30, 2022, the fee cap will be $6,000, but in cases decided on November 30, 2022 and thereafter the fee cap will be $7,200.

This increase in the fee cap has been delayed far too long and it does not account for inflation and the increased cost of doing business. The cap was raised from $4,500 to $6,000 back in 2009 (13 years ago). While your lawyer’s earnings may not be at the top of your list of things to worry about when you are unable to work, in pain and struggling to get by every day, SSA’s policies regarding attorneys’ fees does impact you.

How SSA’s Attorney’s Fee Limitations Affect You

The most direct impact of SSA’s fee cap is to force attorneys to be extremely selective in accepting cases for representation. As you probably know, SSD cases often take up to 24 months to be processed by SSA. During that time, your lawyer is paying salaries, rent, utilities, office expenses, insurance and dozens of other costs but receiving no payments. Further, SSD attorneys only get paid if we win past due benefits and that’s if they decide to pay us. I currently have 7 or 8 cases that I have won, with my fees approved by the judge, but SSA won’t release the money. No one returns my calls and who knows if I will ever get paid. SSA even charges attorneys a “user fee” to withhold and pay attorneys our fees directly. Continue reading →

Mental Health Disability Claims: Do You Have a Winning Case?

mental health disabilityI have written about this issue before but, given the stress of the coronavirus pandemic, I think this question deserves another look because just about every case evaluation I see contains allegations of some mental health concern.

I suspect we will be dealing with the repercussions of Covid-19 for years. In Atlanta, where I live, it seems that every night we see news stories of road rage shootings and other violent crimes.

Entire sectors of the economy have been devastated, causing upheavals in the job markets. How many restaurants have closed over the past year? How many men and women in the hospitality, tourism or travel industries are out of work? And for those who remained employed, many had to adjust to working from home while balancing child care and school-from-home obligations.

It is certainly no wonder that daily stress – whether financial, interpersonal or otherwise – has resulted in more cases of clinical depression and anxiety disorders. Hardworking men and women who might have been struggling with depression or social anxiety but was “getting by” now find the pressure of adapting to a post-pandemic world simply too much.

Here is some of what I see from potential clients in case evaluation requests:

“I cannot physically, mentally and at times emotionally work more than a few hours a week. I have noise intolerance with voices, music, and sounds, especially higher pitches. I have to wear noise cancelling ear phones and they don’t fully help. I cry at times from overstimulation which could be even from thinking, planning or riding in a vehicle. I cannot drive.”

“I have severe depression and anxiety and I can no longer focus on my work. And I had suicidal thoughts I am writing this right now it is 4:35 in the morning. I don’t sleep and I am taking antidepressants like mirtazapine 45 mg and am always sleepy and tired.” Continue reading →

How and Why Social Security Makes it Extremely Difficult to Change Lawyers

Several times a month I hear from a potential client who expresses dissatisfaction with their current attorney (or non-attorney representative) and wants me to review their claim for possible representation. In some cases the potential client has already dismissed the representative and is looking for new representation.

Unfortunately Social Security makes it complicated to change attorneys – although it can be done.

Delays in Your Case Arise from SSA’s Massive Dysfunction

First, I would tell anyone who is thinking about firing their current representative to think twice about this step. The Social Security Administration is massively dysfunctional and most of the time the long delays in disability cases is not the representative’s fault.

A recent article in the Washington Post describes this dysfunction in very stark terms – SSA has effectively been closed for in person access for almost two years (since the beginning of the pandemic) with no projected re-opening in sight. SSA employees are working at home, often without necessary equipment or access to needed files.

According to SSA’s own statistics, the “head count” of Social Security employees in 2021 was less than it was in 2008 despite a massive increase in the number of baby boomers retiring and demand for Social Security’s services. Callers to SSA’s “800″ number are routinely put on hold for hours before having their calls disconnected.

If you want to get a sense of what is going on “inside” SSA take a moment to read what a Social Security field office manager has to say about the state of operations. Statements like “we are a disaster and holding it all together on the back of managers that are breaking” and “many agents don’t have updated mail machines so we must weigh envelopes individually and seal them by hand. The process takes hours. After outgoing is done all day – we handle incoming. Hundreds of documents from the public daily in some cases. Items go missing regularly” don’t inspire a lot of confidence. Continue reading →

What does it take to win a Social Security disability claim based on a mental health impairment in 2022?

In my Social Security disability law practice I am seeing an increasing number of case inquiries from men and women struggling with mental health issues like depression, anxiety, and PTSD. This surge in inquiries is in addition to our case inquiries from potential clients who are dealing with more organic mental illnesses like schizophrenia or the after effects of traumatic brain injury.

Like many others, I suspect that the Covid pandemic is a trigger for increasing numbers of depression and anxiety related claims. Onsite work is stressful both because of concerns about becoming infected and because fewer workers are being asked to do more.

Remote work has changed the social dynamic of employment. More people work alone with only occasional electronic interaction with co-workers or customers. Rambunctious school aged children may or may not be home, depending on whether a school system had to close for a week or month.

Every day I speak to several very stressed out potential clients to tell me that they simply do not have the mental energy or capacity to remain in the workforce. Some have quit while others have been fired for excessive absences or lack of productivity. Continue reading →

Can You Apply for Social Security Disability When You are Still Working?

working while disabled

What are the rules about working while at the same time applying for Social Security disability. Some of the rules are very clear, while others not so much.

Let’s start with the “bright line” rules. Social Security defines disability in terms of how your medical or mental health issues prevent you from engaging in something called substantial gainful activity (“SGA”) because of a medical condition or conditions that have lasted or are expected to last twelve consecutive months or result in death.

As you can see SSA’s definition of disability does not focus on your diagosis – instead it focuses on how your medical problem would impact you in a work setting. I frequently get emails from potential clients asking “do I qualify for disability” due to my:

  • herniated disc
  • diabetes
  • severe depression
  • PTSD
  • congestive heart failure
  • multiple sclerosis
  • fibromyalgia

My answer is always the same. You do not win disability based on your diagnosis – you only win if the medical records proves that because of your medical issues you would not be able to engage in SGA.   To put this another way, SSA’s focus in a disability case is on your capacity for work, not your medical condition alone.

Continue reading →

“I’m 34 Years Old with Serious Medical Problems but Still Hanging on at Work. Should I Quit and File for Social Security Disability?”

should I file for disabilityAs a Social Security disability attorney, I frequently receive emails like pose this question – from a man or woman in their 30’s or early 40’s with a long standing medical condition that makes work a real struggle.

Sometimes the issue is chronic pain – in the back, the knees or even a generalized body pain (like fibromyalgia). Sometimes the underlying medical condition is a chronic disease like diabetes or kidney disease that saps one’s energy and makes it difficult to function reliably day after day.

I even hear from potential clients who are cancer survivors – the cancer may have been removed surgically but the struggles with long term effects of chemotherapy or radiation remain.

More recently I am hearing from Covid “long haulers” – people who contracted Covid in 2020 and who continue to struggle with cognitive loss, low energy and occasional breathing issues.

And almost every younger person I correspond with has some level of anxiety or depression about how facing a future with likely lifelong medical complications, and stress about how they will support themselves or their families.

Should You Quit Work to File for Disability?

So, if you find yourself in one of these situations, what should you do? Keep working? Quit and file for disability? Work part time and file for disability? Here are my thoughts about the reality of pursuing disability if you are under 50 and still hanging on at work. Continue reading →

Are Social Security Judges Denying Disability Claims by Relying on Bogus Data?

why disability judges deny claimsRecently a television station in Charlotte, North Carolina ran a story about the Social Security disability decision making process called “Obsolete Jobs” Prevent People from Receiving Disability Payments (click on link to view story).  The story recounted the struggles of a Charlotte man who with a severe and painful back injury who was denied at his disability hearing by a judge who concluded that he has the capacity to perform a variety of non physically demanding jobs that exist in the economy.

Since the underlying question in every disability hearing asks whether the claimant has the capacity to perform even a simple, entry-level job, judges rely on vocational expert witnesses to identify jobs that a “hypothetical person” with the same impairments as the claimant could perform. Continue reading →

Disability Approval Rates Trending Up

Social Security recently released its annual “waterfall chart” showing approval and denial rates for disability claims at various stages in the disability application process.

2020 Waterfall chart

As you can see, SSA approved 39% of applications filed without requiring any appeals at all.  This means that 39% of disability applications applied and were approved within 3 to 4 months.

For those ending up at hearings, SSA judges approved 49% of all claims.  This is up significantly from the 43% and 44% we saw just a few years ago.  The trend is certainly favorable over the past few years – hopefully, for the sake of deserving claimants, this continues.

You may find the idea of labeling yourself as  “disabled” troubling and this is understandable.  But if you cannot work anymore because of a chronic and severe medical problem, you very well may meet SSA’s definition of disability.  If our office can be of help to you in navigating these confusing waters please let us know.

Online Forums Often Contain Inaccurate or Incomplete Information

online forumsI sometimes look at online forums to see what type of questions people are asking about Social Security disability. Often the questions are good but the answers posted by well-meaning, but not knowledgeable respondents can be a little disheartening.

Often times the folks to post responses are basing their statements on what they have heard or what they think to be true but the net result is that these forums contain a lot of misinformation.

Recently, for example, I saw a post on Reddit asking “at what point in the application process should I hire an attorney?”

My response is here but I wanted to highlight some of the other replies which included inaccurate and incomplete statements. Here are some examples and my comments:

Assertion: there is nothing an attorney can do for you in the first two phases…the first two phases are all about filing paperwork. This is not a lawyers area of expertise

My response: filling out paperwork correctly is one of the main reasons to hire a lawyer. Social Security has its own language with dozens of acronyms and abbreviations. An experienced lawyer knows how to fill out SSA’s paperwork to increase your chances of winning early.

Assertion: when you get to the hearing levels you will need to hire a lawyer. Most lawyers work on contingency. They will get a third of your backpay up to $6,000…

My response: under a standard fee agreement, lawyers earn 25% (not 33%) of past due benefits. With rare exception all attorneys handle SSD cases under a contingency fee (not “most lawyers”). Continue reading →

Is it Enough to Simply Show the Judge You have an Obvious, Disabling Condition?

What if you’re 26 but have Scoliosis mixed with Osteoporscoliosisosis? My back looks like the hunchback of notre dame. My doctor even told me I’d never be able to work a regular job, but that’s been since highschool and my backs got worse. Can I not show the judge how bad my back hunches over? Because clearly they can see I’m disabled if they just saw my back.

Jonathan’s response: I think you should not rely on showing the judge how bad your back hunches over. Your chances of winning disability are much greater if your medical record and opinion evidence from your doctors addresses how your scoliosis and osteoporosis impact your capacity for work.

First, keep in mind that Social Security is not scheduling live hearings at this point. We may go back to in person hearings at some point in 2021 but there will be a backlog and you are likely to wait a very long time to actually appear before a judge. Currently, all SSD hearings are being conducted by telephone. Some judges are starting to hear cases using video (you, as the claimant, would be appearing using your smart phone) but I suspect that the severity of your medical issues would not come through on video like it would in a live hearing. Continue reading →

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