I 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”).
Assertion: An attorney can make a big difference with their medical doctors that can perform a RFC. The RFC is their medical opinion on whether you can work. otherwise you are relying on SSDI consultative examiners. They changed the rule that the consultative examine carries the same weight as your treating doctors. Avoiding the consultative examine is imperative. If a five minute CE issues a contradictory assessment to your treating physician, they can go off the CE to deny you.
My response: the commenter is referring to an “RFC form” which stands for residual functional capacity. Technically the form is called an “FCE” form, which stands for functional capacity evaluation. RFC is a legal concept and represents a finding by the Social Security judge about your capacity for work.
While a lawyer can suggest that you visit a doctor for an evaluation and completion of an FCE form, doing so is often not a great strategy. First, a one time visit with a doctor recommended by your lawyer will not carry much weight with the judge (and the lawyer has to reveal that he/she referred to the specific doctor). Instead, an FCE form completed by a long time treating doctor will carry a lot more weight, especially if the conclusions on the FCE are consistent with your underlying medical records.
Finally, you cannot “avoid” a consultative examination (CE). SSA will send you to one or more consultatives (physical medicine, mental health or both) and you have to go. Often these CE reports will not help you so it is up to the lawyer to ask you questions during your direct examination to discredit the CE by having you testify about how cursory the CE examination was. Your lawyer can then ask the judge to assign little or no weight to the CE report.
Assertion: instead of looking over an application why dont you set up an appointment with your local office? They do appointments by phone. It is their job to fill it out correctly, so if something is done wrong its on them and not on you or some attorney. An attorney has nothing to do with the medical process, so no, they cant make sure its done right. What happens is your application is recorded and sent to DDS upon completion. DDS is the Disability Determination folks, they take your info supplied in the application and query your doctors and medical sources. Its up to the doctors to respond and in a timely manner. Lawyer cant help there. Honestly, as long as your disability has interfered with your work, and you have worked lately, you stand a good chance. People get denied because they apply for benefits but arent eligible because their work isnt impacted significantly or they arent insured. Lawyers are only helpful when law becomes involved in the appeals processes, not an initial application.
My response: No, no, no! Just about everything in this reply post is wrong – I’ll hit the lowlights. First, your local SSA office will not offer legal advice and they certainly won’t help you complete a disability application in a manner that will improve your chances at winning.
Second, a major reason why SSD claims are denied has to do with the failure of doctors to respond to inquiries from DDS. In fact, many times doctors don’t respond because claimants do not supply DDS with the proper address for the doctor’s office – most medical practices have a separate address for medical records requests and if your request is not sent there, it will be lost.
Third, claimants are denied at initial or recon because their medical records do not document a listing level condition. Many times you may have a winning claim but not a listing level claim. Understanding the three “theories of disability” and how they work is crucial to your chances of success.
I could go on, but you get the drift.
And finally, my favorite bit of misinformation…
Assertion: lawyers intentionally delay claims so they can increase the amount of past due benefits and therefore increase their contingency fee.
My response: I see versions of this statement regularly and it reflects the notion that lawyers are greedy and mercenary. While there are bad apples in every profession, I can tell you that I interact with lawyers frequently in my disability practice and elsewhere and the vast majority are honest, hardworking and dedicated.
This is especially true for lawyers drawn to represent clients seeking disability benefits. Every disability lawyer in every state has an ethical obligation to act in his/her client’s benefit regardless of fee. If for, example, a judge offers to approve a case as of my client’s 50th birthday (under the grid rules) but by amending the onset date, all past due benefits would be eliminated and I will not get paid, I would recommend that my client accept this amendment if doing so was in my client’s best interest (this has happened to me two or three times over the years). I am not happy about the idea of preparing and trying a case for no fee but that is the risk I take.
This is also why I would never withdraw from a case at the last minute if I discovered that my client was not insured for SSDI or that recently discovered medical evidence suggested that my client’s impairments were much less restrictive than my client had claimed.
Second, I would gladly take a win at initial or recon and earn $500 to $1,000 rather than risk my client’s future at a hearing where we could draw a judge who approves 15% of claims. Again, every decision I make as an attorney is done from the perspective of what is best for my client.
My point here is not to disrespect folks who contribute to online forums like Reddit. Instead, I want you to know that there is a lot of inaccurate or incomplete information on the Internet and you need to be very careful about what you believe.