It's not uncommon that a claimant seeking SSI/SSDI benefits comes to a lawyer after having been represented by another lawyer who is now out of the picture. Sometimes, the reason is because the claimant fired the previous lawyer or firm and sometimes it is the other way around (the firm withdrew from the case). Lawyers or law firms can withdraw from a case without cause or reason. As an example, a major national Social Security Disability law firm recently began to wind down its practice and as a result had to withdraw from representation from thousands of claimants' cases.
One issue that the subsequent lawyer faces after evaluating whether he/she believes the case can be proven at the hearing is the question of whether the prior lawyer is waiving all potential fees. If not, the new lawyer would need to file a fee petition (delineating the work done and potential amount of payment sought for the work) in the event the claimant wins the case.
Although the new lawyer's fee petition is often approved when well supported and reasonable to the ALJ (administrative law judge) which permits the new lawyers to be paid for services rendered, some lawyers may consider this to be a burden and for that reason reject representation of the claimant who has had a prior representative. This puts the claimant in a difficult position therefore - he or she is searching desperately with little time remaining before appearing in front of the ALJ, thereby creating additional stress after the long wait to the hearing. Sometimes the claimant can procure a letter from the prior representative that "waives all fees" for services rendered creating an easier transition for the new representative.
Justice Delayed is Justice Denied (reality)
In 2017, the Star Telegram in Fort Worth, Texas, reported that nearly 6,000 disability cases were waiting to be decided by a staff of only 10 Administrative Law Judges (ALJ).
Across the United States, the average wait for an ALJ decision is more than 2 years, and while people wait for their disability cases to be decided, 7,400 people died last year while waiting.
These are unacceptable statistics, and we know their cause. They are caused by a lack of adequate funding from Congress and chronic understaffing throughout the entire social security system.
“Justice delayed is justice denied” is an ancient legal maxim which means that if a wrong is not corrected within a reasonable amount of time, then it is as though the wrong were not corrected at all. Delaying Social Security disability benefits for years to deserving persons, especially to the thousands of people that die each year while waiting for their benefits, is a denial of justice.
Rampant Fraud in the Social Security System (myth)
Rather than providing adequate funding, some politicians like to blame fraud as the reason for the inefficiency and understaffing throughout the Social Security system. While it is true that in any large government program, there will always be unscrupulous persons that conspire to abuse the system for their own personal greed, statistics show that there is little actual fraud in the Social Security Disability system, which does a pretty good job at preventing it.
However, politicians and the media like to sensationalize isolated cases of fraud, when these cases arise. For example, in 2013, the New York Times reported a $6 million fraud from Puerto Rico, perpetrated by Samuel Torres Crespo and 74 others (including 3 doctors), who orchestrated a slew of false disability applications, before investigators uncovered the plot. [Published in New York Times, August 21, 2013.]
In August 2012, the Office of the Inspector General reported that Robert J. Velasquez, a doctor from National City, California, defrauded Social Security of $1.5 million, by falsifying test results for claimants seeking disability benefits. [Office of the Inspector General, Social Security, August 2, 2012.] And, in October 2013, an Administrative Law Judge, a law firm, and several doctors from Huntington, West Virginia, were found to have conspired to defraud Social Security of $4.5 million by falsifying records and medical reports. [Published in USA Today, October 8, 2013.]
As egregious as these cases are, they are outliers. In most cases, there is little or no fraud, because it’s not that easy to commit fraud. Approximately 60% of applicants for social security disability are flat-out denied benefits. All disability applications are scrutinized at the initial application, on appeal (“reconsideration”), and in a face-to-face hearing in front of the Administrative Law Judge. It’s not easy to “fake” symptoms or falsify documents. Judges are very good at recognizing any attempt by applicants to do that. In fact, statistics show that people who do get disability benefits are truly sick or disabled, because they have 3 to 6 times higher death rates than persons who do not qualify for disability payments.
Social Security Claims are Sky-Rocketing (myth)
A popular political tactic is to claim that social security disability costs are sky-rocketing and to blame fraud for that. However, social security disability costs are not “sky-rocketing,” and fraud is not running rampant throughout the social security system.
Rising social security disability costs are not the result of “fraud” in the system. Rather than fraud, the growth of the social security disability program for the past 30 to 40 years is almost entirely (90%) due to demographics, such as population growth, aging of baby boomers, and women entering the work force and becoming eligible for social security disability benefits. [Ref: Social Security Bulletin, vol. 7, No. 4 (2013).] Adjusted for demographic factors, the share of workers on disability has gone from slightly below 4% in 2000, to only slightly above 4% in 2014. [New York Times, September 2015.]
As an example, Tom Coburn, a Republican Senator from Oklahoma and a long-time foe of social security, said on a 60 Minutes television program in 2013. “My investigation tells me, and my common sense tells me that we have a system that is being gamed pretty big right now.” He asserted that out of $200 billion paid yearly in disability payments to 14 million Americans, up to $32 billion dollars was paid on “bogus claims.”
Self-serving politicians including Paul Ryan and Tom Coburn have mischaracterized the real issue by demonizing legitimate claimants as "entitlement seekers" and the "rampant fraud" in the system.
Instead, we have a critical need to strengthen the vital safety net of Social Security Disability and Medicare: programs that provide the bare minimum in civilized societies to protect its most vulnerable citizens.
Social Security Disability is not “Welfare”
Social Security Disability (SSD) is not a federal “welfare” program. SSD works like any other insurance program that you pay into while you are working (by paying FICA taxes), which then pays you disability benefits (“Social Security Disability Income” or SSDI), if you become disabled.
Origin and Purpose of Social Security Disability
Social Security Disability is often referred to by politicians as a social “safety net,” designed to protect persons who are old or become disabled.
In ancient times, the Greeks gave “alms” to the old or disabled. The Romans gave corn. The Europeans established “alms houses,” and early in our history, so did we.
A Brief History of Social Security in the USA
It wasn’t until 1935 (during the Great Depression) that President Franklin D. Roosevelt signed into law the Social Security Act, establishing for the first time, a formal government program for financial assistance to the old. In 1956 and in 1960, President Dwight David Eisenhower signed into law Amendments to the Social Security Act that extended financial benefits to persons who were disabled. In 1965, President Lyndon Baines Johnson established Medicare to provide medical benefits to the old. And,Supplemental Security Income (SSI) program was established in 1972 by President Richard M. Nixon to provide disability benefits to the poor.
Thus, from 1935 to 1972, both Republicans and Democrats gradually expanded the social safety-net to provide financial and medical benefits to the old, the disabled, and to the poor, because it was the right thing to do.
A society can be measured by how it treats its weakest members. Providing benefits to the old, the sick, the disabled, or the poor, should be a responsibility of high priority to all countries in the civilized world, and it is. In fact, the United States ranks 16th in the prevalence of disability in our society, compared to other countries such as Sweden, Norway, Germany, and England. [Ref: “Trends in the Social Security and Supplemental Security Income Disability Program.” Social Security Administration.]
The Scope of the Social Security Disability Program
In the United States, more than 66 million persons receive social security benefits each year, totaling approximately $960 billion in annual payouts. The Social Security Administration has about 64,000 employees and 1,500 offices across the country. There are 16,000 employees that just do disability determinations and who request 15 million records each year from health care providers. The annual budget of the Social Security Administration is $12 billion.
What’s Needed … More Funding and Staffing
Cutting down on waste and fraud in any government program is always a good thing, and no one would disagree with doing that in the Social Security Disability program. However, that will not “fix” the problem, because the problem is that the Social Security Disability program needs more funding from Congress and better administrative staffing throughout the country.
The support that Social Security Disability provides to the disabled, and the access it provides to disabled persons to Medicare (SSDI) and Medicaid (SSI), is a critically important social safety-net for the weakest members of our society.
This is a call to action. Vote for politicians who will support the Social Security Disability program and the social safety-net that it provides. Fight for what is right, and “do not go gentle into that good night, but rage, rage against the dying of the light.” [Dylan Thomas,1951.]
Some of the most common conditions which cause back pain include arthritis and DDD (degenerative disc disease). If you suffer from chronic debilitating back pain then it is likely there are resulting physical limitations from your condition. Although this point seems obvious, the SSA will be looking at the medical record first and foremost for "objective" findings (X-Rays, MRIs). Next, do the progress notes document in some way that there are physical limitations (inability to stand/sit for certain period of time, inability to crouch, bend, stoop, kneel and frequently lift/carry 10lbs or more). Consistent progress notes from a treating physician over a period of time lend credibility and would likely include patient comments/reports of pain (perhaps in addition to numbness/radiating pain from pinched nerves); prescriptions of strong painkillers (norco, oxycontin, etc) are yet another factor lending credibility to the overall picture and especially if more than one physician and/or specialists have consistent reports. Finally, is the claimant's appearance consistent with the medical record - if there are inconsistencies with the medical record and anything that the Judge sees in person then that may influence the question of credibility.
Claimant has lost at the ALJ hearing. Filing an appeal of the ALJ decision is an option if an error of law or fact was made by the Judge. See a discussion of top 10 issues for appealing an ALJ decision here. Perhaps most common is that the ALJ did not give the treating physician the sufficient weight that his/her opinion should have been given. If the Appeals Council agrees with the reasons your lawyer set forth on appeal, the remedy is much likelier to be that the case is remanded (sent back) to the very same Judge who denied the case which statistically usually results in the same result, however we have seen exceptions. Subsequent filing (post-ALJ decision) of a new claim is another option provided that there is no DLI (date of last insured) problem and that the subsequent filing sets forth either a new condition(s) or "new and material" evidence not previously considered.
The "AOD" (alleged onset date) is the date from which the claimant represents that he/she became unable to continue working because of disabling conditions. This becomes an important point in time from which to establish the point from which benefits begin (+5 months if SSDI). At the ALJ hearing, the issue may arise from which point the medical records support that the claimant's limitations were well established or implied - and if later than the AOD then the Judge may raise the question of whether there is agreement to "amend onset date" to the date from which the records support the existence of the limitations. Although this raises the issue that less amount of past due benefits would exist, it may be favorable towards a finding of disabled (e.g. a favorable grid rule applicability upon claimant having reached a certain age which is later than the original AOD). Again, the attorney and claimant must discuss implications of this if onset date is to be amended.
"The Vocational Expert is out to get me!" (anonymous claimant)...Although the VE (Vocational Expert) may present some hurdles for a claimant seeking benefits, he/she is not "out to get" claimants. The role of the VE is to identify jobs from the "DOT" that a claimant could potentially still do given his/her limitations and transferrable skills (considering claimant's age, past relevant work and education). If the ALJ (Judge) and lawyer both present a series of hypothetical questions that include ALL the claimant's limitations (physical and mental), then the number of potentially available hypothetical jobs should begin to drastically diminish or result in a conclusion by the VE that there would be NO jobs for someone with all the limitations described in the hypothetical questions. Thus, the real objective becomes more about convincing the ALJ that the limitations included in the hypothetical questions are indeed ones the claimant has.
Sometimes, after all the wait..the claimant arrives late or even misses the hearing..outta luck? If the attorney representative is hired, and a 1696 is filed, it's not the end of the day. The attorney can offer evidence, provide argument, cross examine the experts (medical expert ((ME)) and vocational expert ((VE))..yet, the Judge will require the claimant to show cause why he/she was not there. It may be the case (as happened to us recently) where the client had moved, changed phone numbers, and believed that his hearing was to be held on a different day. As long as the claimant provides a valid reason why he/she was not present and provides testimony for Judge's questions, then all is not lost.
"RFC" stands for residual functional capacity. It is an important term to understand that the SSA uses in the analysis towards whether or not a person is disabled under their definition. Essentially, they are trying to define what the limitations are and resulting type of work they can perform (e.g. sedentary, light, etc). It is not absolutely scientific but an attempt to be specific about limitations (either mental or physical). Examples of physical limitations may relate to how long a person can stand/sit continuously, how much they can lift and how frequently, etc. Click on this link for an RFC form to help document a claimant's physical limitations.