Preparing Your Case.
Social Security disability attorneys manage cases differently, but there are similarities among all disability firms in how lawyers develop and manage cases in preparation for a disability hearing.
What Happens When I First Call a Disability Attorney?
When you first contact an attorney for representation, the attorney or a firm staff member will conduct an initial interview with you to gather the basic facts of the case. These facts are used to help determine if the attorney will take your case. The interviews are usually done by phone; however, you can ask to meet with the attorney in person.
Staff members are trained to spot cases that have a high likelihood of success. However, if it is a borderline case, the attorney usually reviews the file to make a final determination about whether he or she will represent you.
How Will My Attorney Develop My Medical Evidence?
Your attorney, or a staff member in the law firm, will request the medical records needed to win your claim and submit them to the Social Security Administration (SSA) at the appropriate time before your hearing. When you first hire your attorney, you will need to sign a medical privacy release that allows your attorney access to your medical records. The attorney will usually pay for these records for you until your case ends, at which time you will be billed for the cost.
Because Social Security frequently dictates the type of exam needed to win a claim for disability, the attorney will review your medical records to determine whether you need to undergo additional testing. The attorney may ask the SSA to schedule a consultative evaluation or CE with one of their doctors or ask that you get the required testing done on your own, if need be.
Your attorney will decide which doctors to ask for supportive statements about your functional limitations and which medical records are relevant to submit to the administrative law judge who will hear your appeal, and, most importantly, what to do with bad evidence that could hurt your case.
How Will My Attorney Help Me Get Ready for My Hearing?
It is not unusual for attorneys to wait until a month or two before a disability hearing to first speak to a client. Up to that point, your only contact with the law firm may be with paralegals or administrative assistants. Non-attorney staff members are generally responsible for making sure request for hearing deadlines are met and medical records are requested and received, and for communication with clients about pre-hearing matters.
You should your attorney to meet you in person at this stage. Before your pre-hearing meeting, your attorney will have reviewed your file and determined what issues still need to be addressed. Make sure you have your medical records and other relevant documents handy if you need to refer to them during your meeting.
Your attorney will review with you the questions you are likely to face during your hearing. Examples of common hearing questions are:
Describe your symptoms as specifically as you can.
Are you currently seeing a doctor for your disability?
Are you depressed or anxious?
When did you first become too sick to work?
Do you do any work now?
What treatments have you tried?
What medications do you take and what are their side effects?
Does your medication help you feel better?
If you take pain medication, do you ever take more than you are supposed to?
Do you currently abuse alcohol or illegal drugs?
If you abuse alcohol or take illegal drugs, are you seeking help for your problem?
Have you ever been incarcerated? If so, what for?
Do you have health insurance?
Can you take care of your personal hygiene? Cooking? Cleaning? Driving? Shopping?
Are there things you used to enjoy that you can’t do any more?
How do you spend an average day?
Can you lift a gallon of milk?
Can you walk at least a block?
Can you climb a flight of stairs?
Do you get along with others?
Can you read and write?
How far did you go in school?
You must answer all of your attorney’s questions as honestly as you can—even if the questions are embarrassing or you feel ashamed of the answers. Otherwise, your attorney cannot represent you effectively. Remember that your attorney is not there to judge you, but to help you win your claim. Also, keep in mind that anything you say to your attorney is privileged. This means that your attorney can only share information with others that you want him or her to share. If you are not sure why the attorney needs to know certain information, you should ask your attorney to explain why the answer is important to your case.
Will My Attorney Arrange Witnesses for Me?
The SSA allows you to bring a witness to testify about your disability, but because witnesses can be harmful or helpful to your case, your attorney will decide if witness testimony is necessary to win your case. Your lawyer may be interested in asking some friends, family, or prior workers to give evidence of how the disability has affected you.
How Will My Attorney Argue My Case?
Your disability lawyer will determine the best way to win your case. First, your lawyer will review your denial letter from Social Security to get the agency’s reasons it denied your claim so that these issues can be resolved in your favor.
Next, your attorney will develop a “theory” of why you are disabled under Social Security disability law. There are three main possible “theories” an attorney can use to do this. Your lawyer can:
Prove that your condition meets a “disability listing” (see below).
Prove that you “grid” out of all work (including not being able to do your past work);
Prove that your “non-exertional limitations” prevent you from working, or
Prove that your exertion level is “less than sedentary.” (See below).
Disability listings. A listing is a description of an illness written by the Social Security Administration (SSA). If you meet the criteria in the description, you will qualify you for automatic approval of disability benefits. To determine if you meet a listing, your attorney will first see if your illness has a disability listing in Social Security’s “blue book.” If it does, the attorney will review the requirements of the listing and compare them to the evidence in your case. If your attorney thinks additional testing is needed to meet the listing, he or she may request that an SSA doctor examine you or that you schedule the necessary tests with your physician. If your condition does not seem likely to meet the listing, the attorney will look to other possible theories.
The grid. If the SSA says you can do your past work, your attorney must to try to prove that you cannot do your prior jobs. Then, the attorney will try to use the “grid” to prove that you can’t “adjust” to less demanding work. The grid is a system developed by the SSA to decide if a person is able to work based on the highest exertion level of the job he or she can perform (sedentary work, light work, or medium work), along with the applicant’s age and education level. The grid is usually most helpful to older, less educated applicants who can perform only minimally active (sedentary or light) jobs. To win using the grid, it is especially important that you have supportive opinions from your treating physicians.
Less than sedentary. If you don’t meet a disability listing or cannot “grid” out of work, your attorney must be able to prove to the SSA that you cannot do even a sedentary (sit-down) job. (The grids lay out the rules only for those who can do medium work, light work, or sedentary work.)
To prove you are not capable of sedentary work, your attorney will use the documented symptoms of your illness, the opinions of your treating doctors, your testimony, and any other objective medical evidence in your file to show why you can’t do various sit-down jobs. For example, if your doctor has said that you can’t lift more than 10 pounds or sit more than two hours per day, this will help prove that you are capable of “less than sedentary work,” meaning that Social Security will have to find you disabled.
At the disability hearing, your lawyer will ask you ask you a series of questions called “hypotheticals.” These hypotheticals are designed to rule out the possibility that you can work any type of job due to the limitations imposed by your condition.