Should I Use An Attorney To File For Social Security Disability Benefits?

October 11, 2016

This is probably the second hardest question to answer for yourself, besides coming to the conclusion you are not able to work due to either a physical or mental impairment or a combination of both.

To answer this question, let's ask another one:

What can an attorney do for me that I can't do for myself when filing for Social Security disability?

Well, it depends on where you are in your claim for benefits. If you are using an attorney to initially file for disability, there truly is not much he or she can do for you other than stand in line and hold your hand. An attorney does not have the secret code to get your claim approved or moving faster.

However, if you do decide to use an attorney from the very beginning of the process, there are some advantages. First, if your claim has to go to a hearing, then you and your attorney will be together for at least a year or more. He or she will likely be familiar with your case, which makes him or her a better advocate. Second, there are some pitfalls along the way that I have seen many disability claimants fall into because they just did not know better. For example, when it comes to filling out the Function Report, many times the Disability Determination Services (DDS) uses the answers made by the claimant to deny his or her claim. But, when using an attorney, he or she knows how the answer the questions in such a way to show that even despite the fact a person may be able to wash dishes (for example), it often takes that person three times longer than what it would a normal person. How something like this translates to the person reviewing the claim, is that he or she may be off task 15% of the time it would take someone else without an impairment. Which again, translates to reducing the number of jobs a person could do with such a limitation.

So, if you're looking for a magic fix from the start of your disability claim by using an attorney, it is likely the benefits will not reveal themselves until the hearing stage of the claim.

But, if you are trying to decide whether or not to use an attorney to fight your claim, here are some simple rules to keep in mind.

Yes, you should use an attorney if:

(1) You are under the age of 48.

If you are a younger individual, the odds of you winning your disability claim before the hearing stage are less than if you were older. Social Security's rules favor those that are older in age because the older you are, the less jobs that are available within the national economy you would be able to perform.

(2) If you are claiming only a mental impairment.

If your only claim as to why you are unable to work is due to bipolar or depression or ADHD, then you definitely want to use an experienced Social Security disability attorney. The Administration is skeptical of these claims and there are just too many filed. If you are going to have success with only a mental impairment, it will likely be at the hearing stage or beyond. In fact, as an attorney, I see too many cases filed with these types of impairments, and I know from the very beginning they will be denied on their first two attempts at benefits.

(3) You haven't been going to the doctor very much.

Suffice it to say that by the time a person actually does file for Social Security disability benefits, he or she may have been out of work for a while and no longer has insurance. If this is you, you would be better served if you used an attorney to help explain why you cannot work. Medical evidence is the cornerstone of all claims, and without it, a successful case is rare. Free to low-cost medical service do not take the time to really explain a person's limitations, which means that these kinds of cases usually end up at the hearing level or beyond before they become successful.

(4) You are a minor/child.

This is just like #1, but a child's case should use an attorney. Because the Social Security Administration relies heavily on teacher questionnaires and limitations of daily functioning as children of the same age, most people do not understand what it takes to win a disability claim for a child. Further, most of these claims are for either dyslexia or ADHD, which is again is for a mental impairment, which always makes the case that much harder. So, if you need to file for your child, you may want to hire an attorney from the very beginning.

(5) Your disability case is for a closed-period and you are just about ready to go back to work.

In order to be found disabled, your case must be expected or must have already lasted for one year or more. If your case has lasted for a year and you are now considering returning back to work and wish to be paid for your long-term disability period before you felt capable of working, it is oftentimes best to hire an attorney to help explain what exactly you are needing. Without this communication with the Social Security Administration, it only looks like you abandoned your claim and went back to work.

(6) Lastly, if your case is only for Supplemental Security Income (SSI) benefits and you do not have the work credits to qualify for Social Security Disability Insurance (SSDI).

Before, I would have never said that an SSI claim needed an attorney, but the way things are going right now, it is almost impossible to get out of Social Security's "black hole" once a case is denied due to lack of work credits. Once a claim is denied for SSDI, a claimant and his or her attorney must act fast to make sure the SSI claim is continued despite a person's lack of work history. Oftentimes, this means an attorney must act proactively to get an SSI interview going, file an appeal, and get the claimant back on track. Many unrepresented cases fail at this stage without the person realizing Social Security is no longer considering the claim. Since it is very difficult to know at all times what is happening to a claim, a person could wait for months before knowing the claim was denied and his or her appeal rights have expired.

Now, when do you not need an attorney?

(1) If you are over the age of 50.

If you are at this age, Social Security's rules begin to favor you winning your claim. Due to your age, there are less jobs you would be able to perform in the national economy, and the less jobs there are, the better your chances at winning your claim.

(2) You have less than a high school education.

If you have not graduated from high school, this means that you likely have less transferable work skills to apply to some other kind of work, which means you increase your chances of winning your claim.

(3) You have a serious physical impairment.

If you can touch and feel your physical impairment and it shows easily through tests your doctor has performed, it makes it easier to determine what limitations you have. The easier it is to determine your physical limitations, the easier it is to decide whether or not you are capable of working.

(4) You worked at a very labor intensive job for the last fifteen years.

If you have worked at a heavy or very heavy type of job for most of your life (an especially for the last fifteen years), it reveals that your body may be worn out and incapable of performing other types of work. Couple this with a person over the age of 50, and it increases your chances of success as well.

(5) You cannot perform at a job in which you would be required to sit for at least six out of eight hours per day and you have limitations in your hands.

Almost all sedentary-type jobs require both of these in order to adequately perform them. If you have to use some type of prescribed walking device along with being unable to sit the majority of the day, this often precludes most jobs within the national economy.

(6) You are legally blind (20/200 or some other type of sight impairment) even with corrective lenses. T

his is pretty much a no-brainer. If you can't see to drive, have difficulty walking due to your vision, or would be unable to see small items or use a keyboard, then your case will likely be successful and you don't need an attorney.

(7) You have a very long work history and have worked for many years before your physical impairment made it impossible for you to continue doing so.

The longer you have worked and the older you are, the more credibility you have with the Social Security Administration. Persons with long work histories reveal that he or she would likely continue working if they could. This may be the tipping point in which a case would be approved rather than denied.

(8) Lastly, you have a serious disease and one that the Social Security Administration has deemed to meet one of their medical listings.

If you have stage 4 cancer, stage 3 lupus, need an organ transplant, etc., Social Security will often take your medical records and apply them to their own medical listings. If you meet one of them (and it is very hard to do by the way), you will be automatically approved as long as you meet the other requirements to receive benefits.

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