by Scott E. Davis, Esq.
Disability Attorney
Did you know you can increase
your odds of winning your Social Security (SSA) Disability
case by more than 50% if you are represented by an attorney?
Simply put, that’s a dramatic difference and one that every
Social Security disability applicant should heed.
Congressional and SSA’s own statistics confirm this
statement is true. The statistic came to light in November
2001, during Congressional testimony provided by Congressman
Robert T. Matsui of California. During the hearing
Congressman Matsui provided the following testimony:
“Professional representation is a valuable-and indeed
vital-service. The disability determination process is
complex. Claimants without professional representation
appear to be far less likely to receive the benefits to
which they are entitled. For example, in 2000, 64% of
claimants represented by an attorney, but only 40% of
those without one, were awarded benefits at the hearing
level.”[1]
At the same hearing,
Congressman E. Clay Shaw, Jr. of Florida provided the
following testimony:
“As many
of you know, filing for Social Security benefits —
especially disability benefits — is so complicated that
many claimants must hire attorneys to guide them through
the process.”
[2]
Please
understand I am not suggesting that you must have an
attorney in order to win your disability case. People can
and do win their cases on their own. In fact, SSA does not
require you to have an attorney, you can represent yourself;
but why on earth would you? Congressional and SSA’s own
statistics show dramatic differences in the outcomes of
cases depending on whether an attorney is involved.
I have
debated for years on whether to write an article on why one
should hire a disability attorney. I did not want the
article to be viewed as self-serving for either myself or my
profession. I am aware of the unfortunate stature attorneys
hold in our society, some of which is deserved. I always
enjoy the look in a person’s eyes when they learn I am an
attorney; it is clear they are searching their mind to share
the latest attorney joke…and most are very funny!
However, the
testimony of Congressmen Matsui and Shaw confirms what SSA
and many disability attorneys have known for years. With
such a compelling statistic, it is my hope this article is
viewed as educational, rather than self-serving.
So you know
the difference a disability attorney can make in your
case…what can do you do about it? For those of you who are
now considering hiring an attorney, let me provide you with
some basic information to assist you in your decision.
1. You
only pay an Attorney’s fee if you win your Case!
The number
one question on people’s minds is, “How can I afford an
attorney when I am not working?” The answer is simple…you
only pay the attorney a fee if you win your case. You do not
pay an attorney upfront. Generally, every disability
attorney will represent you on a contingency fee basis.
Simply put, this means you do not pay an attorney’s fee
unless you win your case. Thus, everyone seeking disability
benefits can afford an attorney. The question you should be
asking yourself is “can I afford not to be represented by an
attorney?”
2.
General information regarding the attorney’s fees
The SSA and
federal law set the attorney’s fees in disability cases. The
standard fee agreement most attorneys use states the
attorney’s fee is contingent upon winning your case. The fee
is 25% of all past due benefits for you and your family, up
to a maximum of $5,300, or whichever is less. Some attorneys
may use a fee agreement which provides for a maximum fee of
$7,000.
It is worth
noting that on February 1, 2002, SSA increased the maximum
standard fee amount to $5,300 from $4,000. This is the first
time the fee has been increased since 1990 and simply
represented a cost of living adjustment.
Thus, the
attorney’s fees are usually only a fraction of the benefits
you receive; depending on the amount of your past due
benefits, it can be a very small fraction.
3.
What is my case worth if I win?
The answer
to this question depends on a number of factors
including…how long you have been disabled, when or if you
will ever return to work, the amount of your monthly benefit
and whether you have eligible dependents.
For example,
if you are 45 years old, your monthly benefit amount is
$1,000, and you do not return to work before age 65; your
case can easily be worth $250,000! This amount does not
include the value of the Medicare or Medicaid insurance you
will be eligible for after being found disabled. As many of
you know, the price of medical insurance in middle age, with
pre-existing medical conditions, can be staggering and not
affordable. This of course assumes that an insurance company
is willing to insure you.
4. Why
you increase your odds of winning
your case if you hire a Disability Attorney
There are
many reasons hiring an attorney can significantly increase
the odds of winning your case. One significant reason is
that disability attorneys understand the complicated laws
and regulations that determine success or failure. Two
questions I always ask potential clients are, “Do you know
what you need to prove in order to win your case?” and “If
you do not know, how are you going to go about proving it?
You should
hire an attorney who specializes in Social Security
disability law. Furthermore, I believe it is important to
hire an attorney who has expertise in representing people
with your type of diagnosis. It is important that your
attorney believes in your case and that they can win it. I
suggest you ask the attorney how much experience they have
with your type of diagnosis and how often do they win? Any
disability attorney should be willing to provide you with
this information.
5.
What an Attorney should do to increase
the odds of winning your case
From the
beginning, the attorney should set forth a strategy that you
both of you should follow to win your case. It is critical
to understand what is necessary to prove your case and how
you will go about winning it. The sooner you know this, the
sooner you can take steps to execute the strategy and
thereby increase your odds of winning. Thus, you should
consult with and hire an attorney either when you file your
claim or as soon thereafter as possible.
Based on my
experience in representing clients nationwide (remember
Social Security is federal law and not state specific);
literally none of them had a strategy or plan on how to win
their case before they hired me. This is important because
most of them were simply “doing whatever SSA told them to
do” while their claim was being processed. This included
seeing SSA’s doctors for an examination that often results
in a denial of their claim.
It is
important to understand that SSA is only obligated to
investigate your case and is not charged with approving it.
I am not suggesting that SSA denies every claim; I’m simply
stating that my experience after having successfully
represented many clients whose claims were previously denied
by SSA because evidence was not obtained, not reviewed or
SSA focused on what it wanted to in order to support a
denial.
In
conclusion, if you are contemplating filing a claim for SSA
Disability benefits, I encourage you to consult with an
attorney as soon as possible to help you understand the
process. The consultation should not cost you anything
except your time. By understanding the process and having a
strategy, you will significantly increase your odds of
winning your case.
Congressional and Social Security’s statistics do not lie –
it is penny wise and pound foolish not to hire a disability
attorney.
[1]
November 16, 2001 CONGRESSIONAL RECORD, Testimony of
Honorable Robert T. Matsui of California, regarding the
Attorney Fee Payment System Improvement Act 2001.
[2]
November 16, 2001 CONGRESSIONAL RECORD, Testimony of
Honorable E. Clay Shaw of Florida, regarding the Attorney
Fee Payment System Improvement Act 2001.
Best of luck to
you and remember to keep
fighting for the benefits you deserve!
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