I am honored that Alison invited me to write a post about filing for disability from an attorney’s perspective.
I hope to answer some of the most common questions claimants ask in regards to filing for disability.
But first, let me introduce myself.
My name is Tatiana Froes.
I am a disability attorney practicing disability law in Arizona for over 11 years. I am also a book author and a course creator in the area of disability practice, and a blogger at realtactics4disabilityclaims.com.
In the blog, I talk about all stages of the disability process and offer tips and tricks on how to improve your chances of winning your claim.
Before we get to the questions, let’s talk about some important facts about filing for disability.
One of the most important things you can do when filing for disability is to make sure you are seeing specialists in your medical conditions.
Your primary care physician alone cannot help you with your claim.
The same goes for nurses, physicians assistants, and chiropractors.
Social Security is not taking these providers as seriously as they used to.
Medical records are everything in a case. So even if your doctor said something significant and life-changing about your condition during a consult, if it is not on paper, it does not exist!
Learn to read them. Be critical of them. Just because your record has a diagnosis, it does not mean it is an active illness.
Focus on the physical exam portion of the records and not on the history or assessment as much.
If everything looks normal, your doctor may not be writing the right things and this could affect the outcome of your case.
I’m sure you hear this a lot, but it is worth repeating: NEVER give up on your claim! Just because they denied you, it does not mean your case is over. Some disability cases have to go in front of a judge, and they will keep denying until you reach that point. But to get in front of a judge, you need to appeal at every stage.
If you request a hearing, do not assume Social Security will order records for you. Once you receive confirmation that the hearing office (OHO) has received your appeal, start working on gathering records just about every three months or so.
Feel free to submit them to the hearing office. A lot of unrepresented claimants get their claims denied because their files were not updated. All they have is the records from the last appeal, by the time of the hearing, these will be too old. Or they could interpret that as a “gap” in treatment, which does not help you.
Before you decide to file, it does not hurt to talk to an attorney. You may learn a few useful things about your case and find out if it is time to hire someone.
Attorneys cannot charge a fee until, and if, they win your claim, and they will do free consultations to see if they can take your case.
I thought these facts were important to share with you. But let’s focus now on the questions, and I hope these will clarify some of the most common misconceptions about disability claims.
1. Could you briefly describe the full disability application process?
The best way to describe the process is to start with a graphic so that you can see the big picture. Below, you can see the different stages of the process in a simple format:
When you finally decide to file your claim, you first file your claim at the local office, by phone, or online.
Little secret? File by phone.
Because they will do all the typing, answer all your questions, and help you figure out things that you may not know or even thought about the process.
After you file, they will send you forms to complete, and they will order your records for the relevant period of your claim. After a few months, they will make a decision.
If you get approved, you are done, and they will process your payment soon after. If you get denied, you have 60 days to appeal to the next phase.
In some states, that new phase is called Reconsideration. If your state skips that phase, then you will be requesting your hearing (see graphic above). To learn if your state skips the Reconsideration phase, be sure to contact your local office. Their information is usually found in the denial letter.
If you get denied in the Reconsideration phase, then you appeal to request a hearing (also within 60 days of the denial).
If you get denied at the hearing, your next step is to the Appeals Council. This phase is a lot more complicated and your chance of winning greatly diminishes.
That’s why it is so important not to rush into filing in the first place. There are important steps in the process that you have to take before filing your claim.
If you wish to learn more about the prep work before filing and the initial filing process, I have a free mini-course where you can learn a lot about that initial prep and why you should work on that before you file.
Although tedious, that prep work can make or break your case.
Trust me on that.
2. Can you explain when in the process a lawyer is most likely to be needed and why?
As mentioned above, it is always a good idea to at least consult an attorney before you file to see if it is the right time to start your claim.
For example, some claimants try to file while still working, thinking they can wait to win their claim before quitting their work. This is not always a possibility in some cases.
However, you mostly don’t need an attorney to file the initial claim. Most of the work is answering questions to the caseworker or (online). If you use an attorney to file your claim, you will still need to answer the same questions.
You may see attorneys telling you to come back if/when you get denied. Why is that?
Because first of all, it is a lot of work to file a claim for a client. And if the client just stopped working and wins on the first try, the attorney will not get paid a dime. We love to help our clients, but we also have to pay our staff, and doing free work can be costly to attorneys.
Most claimants hire an attorney right after the first denial.
I honestly think this is the best time to hire someone.
Because an attorney will have a chance to review your entire file and make sure that your treatment records are actually supporting your disability claim. Some claimants have no idea if they qualify, or think they qualify when they actually don’t.
One common example is a person who can no longer do certain types of jobs but could potentially do simpler jobs. One may not be able to be a truck driver anymore but could be a superstore greeter, for example.
Another reason to hire an attorney at the earliest stage is that you will have plenty of time to “fix” your treatment. Especially, if you are not seeing the right doctors for your condition(s), or have enough visits. Doctors also have a tendency to write poor notes on most files. Knowing how to fix this earlier in the process will help your claim if you end up at a hearing.
As I mentioned above, a lot of cases are won at the hearing stage. Why?
Because certain impairments are too complicated for a lower-level caseworker to decide. The most common cases that end up in front of the judge are “pain” cases (fibro, RA), spinal, and mental impairments. These require a certain thought process that the judge must follow to assess the claimant’s credibility and actual disability.
Using the time from the first denial to get an attorney will give you ample time to get all the treatment you can so that when your case gets in front of a judge, it is well supported and documented.
3. When choosing a lawyer, what are the most important features to look for, and what are the best sources for that information?
I always tell my readers to look for a local attorney whenever they can. Avoid national firms. The reason is because you can drive to a local attorney’s office if you need to see the attorney. Or when, for some reason, you want to drop off files, etc. And in those cases when you don’t hear from the attorney for a while.
Claimants sometimes also think that just because they hired an attorney, they don’t have to worry about getting treated anymore.
That is not the case!
We need the evidence to win a case, and if there is no treatment, there is no evidence.
When looking for an attorney, be careful about those with 5-star reviews!
Besides trying to get a local attorney, when possible, you want to look at their reviews to make sure the attorney is communicative, caring, and will fight for your case.
It is very easy nowadays to “buy” 5-star reviews. You actually want the 4.5 star reviews. Those are real attorneys with real reviews.
Another way to find a good attorney is referrals, but even then, check those reviews!
The reason I recommend local attorneys is because most national firms will take any case that comes in the door. Then they assign it to local attorneys who will get 1/6th of the attorney’s fees.
Most times you will never hear from that attorney until the hearing date, even when they are local.
They also don’t take the time to prep you for the hearing.
Often they barely speak at the hearing, either because they are not prepared or barely had time to read your file.
So try to find a local attorney!
Two of the best sources of information to hire a local attorney:
Nosscr.org (the National Association of Disability attorneys) Then find your state and your local Social Security office.
You can also check the internet with search terms like “disability attorney and (name of your city).” Then check the reviews.
4a. Preparing to talk with the attorney: useful considerations
There are two questions that should be in a claimant’s mind to start: Is it time to file, and should I get an attorney?
Once you decide to file, there is nothing wrong with calling an attorney at that stage as this will help you learn a few things about when to file and if to file your claim.
When you are attorney shopping, also consider personalities.
You don’t want an attorney who doesn’t care about you. But you also want an attorney who is objective and not afraid to tell it to you like it is.
Sometimes, we attorneys have to give bad news or explain rules that we did not create. Clients get mad at us, thinking that we are the ones making their lives difficult. Trust me, it is not.
Be respectful and listen to the attorney’s explanation. You may learn a lot about your case, your ability to win, and what you need to do to improve your chances.
Simply don’t shoot the messenger. We are there to help.
Just because an attorney doesn’t want your case, it doesn’t mean you don’t have a case.
Some attorneys like to handle certain cases, others will take anything that walks in the door (you do want to be careful with those). And if more than one attorney is saying that it is not the time to file, or that your case is not that good, listen to those attorneys.
It may be something as simple as “it’s too soon to file” or “you are not getting treatment and will never win without it.”
Listen, take notes, and fix it if you can.
When you call an attorney, they know what they want to know from you.
Let them ask questions first. They know what information they need to make an assessment.
Your questions will naturally follow based on what the attorney learns from you. It is hard to predict what those questions are, but you will know as the conversation progresses.
Most claimants simply want to know if they qualify, when to file, where to file, and their chances of getting awarded benefits.
Some of the answers to these questions can only come with a conversation with an attorney and answering the questions he or she will ask.
There are also questions about fees.
As mentioned above, Social Security attorneys don’t get paid until, and if, they win the case. Fees are also standardized and are mostly the same.
Unless your case goes beyond the first hearing, your attorney cannot charge more than the standard fee. As of this writing, the fee is capped at $6,000, or 25%, of your back pay (whichever is less). After that, it is a straight 25% without a cap.
Attorneys are allowed to charge separately for costs (copies, ordering records, etc.). You always want to discuss any costs or fees before you sign with that attorney.
4b. The “not so helpful questions” that too many claimants ask
What is your success rate?
In Social Security this is almost offensive to ask the attorney.
Not that we don’t like to brag about our wins. Or hide our losses.
It is because attorneys cannot make predictions or guarantees.
Success rates vary based on cases we choose to take versus our ability to win cases. It also depends on the judge that gets selected to decide your claim.
While we mostly take cases that we believe in, judges can certainly deny a claim even though the claim is a winner.
What I can say is that we attorneys like to choose cases with “good bones,” and cases that we know we can work and make them winnable.
Losses are hard for us attorneys too because we put in a lot of work into winning cases.
To see a denial is very deflating (especially after a hearing).
It is also extra-deflating because we are not getting paid for all the work and all the years we’ve had the case.
That is why success rate is a very weird question to ask an attorney.
Another weird question I get is “Tell me about yourself.”
This is not a date and it is too open-ended to answer. What does the client actually want to know? My sign? How many dogs I have? My favorite color?
Always focus on your case. You will then see how the attorney is as a professional during your conversation.
You should see if your personalities match, if he is caring and takes the time to explain things to you.
Reviews are a better way to assess how the attorney is overall professionally. The rest is personality and how you get along in the initial conversations.
There is something to be said about “gut” feeling.Trust it!
5. What would be a good reason to fire an attorney?
The main reason to fire an attorney nowadays is lack of communication. Communication is key in an attorney-client relationship. If the attorney never calls after you leave several messages, it is not a good sign.
Attorneys are ethically bound to talk with their clients. They can get in trouble if they don’t follow that rule. So if your attorney is not returning calls, you may want to consider whether you should fire that attorney.
However, you must be careful about the timing when firing your attorney.
One issue is if you are too close to a hearing. Another issue is if that attorney did a lot of work in your case and he or she won’t release the lien (right to fees for work done) in your case.
If you hire a new attorney, he will have to agree to take your case knowing he will have to split fees.
You must be careful about firing your attorney. If he won’t release the lien, another attorney may not want your case. And you may end up without an attorney.
The earlier in the case you fire your attorney, the easier it is to get that lien release letter.
6. What advice do you have for disabled folks who are in the application process?
More than anything, learn how to read your medical records! This is the main reason cases are denied.
Claimants think that because they see a doctor or another, they have a good case.
Claimants think that because they suffer every day, they have a good case.
But, as I mentioned before, if your doctor does not write down your symptoms and his observations in the medical notes, there is no case.
Almost always, the culprit for disability claim denials are medical records lacking information.
The other culprit is claimants not seeing specialists for their particular illness(es) and relying on their own feelings as their “source” of believing they have a good case.
Always remember, what is not on paper, does not exist. If you are not seeing doctors frequently, even if there is not much they can do for you, Social Security will think your condition is not that bad.
I hope the answers to these questions will help you in your disability claim process. Feel free to ask questions in the blog comments. You can also check my blog here, and my Facebook group where you can learn more about filing for disability.
Finally, remember that you have a free mini-course you can check here to learn a lot about the process, even if you already filed.
Thank you for the opportunity to answer these questions.