Who Is a Social Security Disability Lawyer?
Social Security lawyers help clients at all stages of the application process, from the initial application to the hearing before an administrative law judge, to filing appeals with the Appeals Council and federal district court lawsuits. Disability lawyers are training in the code of federal regulations that apply to claims for Social Security disability.
Social Security lawyers help their clients win a monthly disability payment and often retroactive lump sum payments. Because each application for Social Security disability benefits is governed by a complex set of rules and regulations, many people hire an attorney to help them navigate the system. Social Security lawyers do not charge upfront fees, and only get paid when their clients get paid. This system helps people afford an attorney to perform services on their behalf without compensation until the case is approved. The rules for disability lawyer fees are structured so that those facing a period of unemployment due to a disability can still get legal help even if they can’t afford to pay upfront attorney’s fees.
Since they won’t get paid if their client loses, Social Security disability attorneys are incentivized to win cases for their clients. Most attorneys charge a fee for services, which is usually 25% of any past-due benefits (the retroactive, lump sum payment), with a maximum fee amount of $7,200. This raises the question: is it worth it to hire an attorney? This article will discuss the services that Social Security disability attorneys perform for their clients. Read the complete article so you can make an informed decision about whether hiring a Social Security disability attorney is the right decision for you.
What Exactly Does a Social Security Disability Lawyer Do?
A Social Security Disability lawyer:
Social Security attorneys offer a free initial consultation. The attorney will ask questions about work history, disabling conditions, treatment history, and discuss the rules and regulations that may apply to each specific case.
During the initial consultation, the attorney will explain how the Social Security laws may apply to your case, based on your unique circumstances. When an attorney conducts an initial consultation, they will explain the applicable SSA regulations that result in winning cases. For example, if a client’s condition could potentially meet or equal a Social Security listing (SSA’s “blue-book” list of conditions that meet the definition of disability), which are grounds for an automatic approval.
An attorney will also have expertise with the SSA Grids Rules, which apply to certain individuals who have medical conditions that do not meet one of the SSA’s listings. In cases where the grids rules apply, the SSA considers a person’s medical and vocational profile to determine whether they can perform any of their past relevant work or perform other types of work. Certain age categories (i.e., ages 50–55, 55–60, 60+), in combination with certain types of work histories and impairments, result in eligibility for Social Security benefits. SSA attorneys will explain the rules to their clients, who benefit from an understanding of the rules of the system while navigating the process.
The “evidence” in the vast majority of Social Security cases are the claimant’s medical records. The attorney will explain the impact of robust treatment records and the importance of maintaining consistent treatment throughout the process of applying for Social Security benefits. The attorney will review medical records for “bad facts,” inconsistencies, and evidence that might have been overlooked by the Social Security Administration.
Social Security attorneys also advise clients regarding whether additional medical tests are necessary. For example, many people mistakenly believe that a single objective test, such as an MRI or X-ray study, is sufficient for proving disability indefinitely.
For example, construction worker Jeff has an old workplace injury from 2015 in which he hurt his back. He stopped work for six months to recover, during which he underwent extensive treatment including an MRI study and multiple lumbar injections. The injections allowed Jeff to return to his work in 2015 and he continued to work after the injury, even though he was working through pain.
In 2023, Jeff’s back is now flaring up again, and he is no longer able to work his construction job. Because he is out of work, he loses his insurance and has not sought treatment for his back since 2015. Jeff mistakenly believes he can file a claim for Social Security disability based on his old back injury without new medical evidence.
Jeff talks to a Social Security attorney, who advises him to resume treatment on his back so that, when SSA evaluates his new period of disability in 2023, they will see how bad his back is. Jeff gets an updated MRI study that shows his back has worsened since 2015 (to be expected after eight years of physical labor with a bad back), and the SSA approves his application in 2023 based on this new evidence.
Jeff avoided a lengthy appeals process by consulting with an attorney first before applying for disability. At the initial stages, one of the most important things an attorney can do is giving advice about the timing of an application.
Attorneys will advise their clients about the optimal timing of a disability application. Although two-thirds of disability applications are denied by the Social Security Administration, it is important to set yourself up for the best possible chance for success at the initial stage. An approval on the application saves months and even years of waiting on appeals.
An attorney will explain the “duration rule” to their clients, which says that a disability must last or be expected to last for at least 12 consecutive months in order to meet Social Security’s strict disability rules. By speaking with an attorney first before submitting their application, many clients avoid a common mistake with disability applications — filing too early.
For example, let’s say nurse practitioner Delores is diagnosed with multiple sclerosis in January 2023 after a year of worsening symptoms. She stopped working on February 1, 2023 and filed an application for Social Security disability on February 15, 2023. Although she has a condition that can be expected to last 12 months due to her multiple sclerosis, Social Security denies her application in July 2023 on the basis that her condition may not disable her from working until February 1, 2024, 12 months after she stopped working. The SSA does this even though Delores has a condition that is not expected to improve or go away.
A Social Security attorney would likely counsel Delores to wait at least six months after the day she stopped working to file a Social Security application, and to file her application in August 2023 instead of February 2023. An attorney knows that the SSA takes six months to make decisions on applications, so an application filed in August 2023 will likely be decided in February 2024. In this case, the SSA can no longer use the 12-month rule as a reason to deny Delores’ claim. Had she waited until August 2023 to file, she would have given SSA more time and a longer trail of medical records on which to decide her case.
The Social Security disability process involves strict deadlines, which an experienced attorney will be intimately familiar with. If an initial application is denied, there are only 60 days to file an appeal called a Request for Reconsideration. If the first appeal is denied, there are 60 days to request a hearing before an administrative law judge (Request for Hearing). Since most cases go to the administrative law judge level, it is in your best interest to meet the deadlines of the process. If these deadlines are not met, then you have to start the process over. By hiring an attorney who specializes in Social Security disability law, you are decreasing the chances of missing a deadline and waiting many more months to go through the process.
This is arguably the most important work that a Social Security attorney performs. Because many cases are approved at the administrative law judge level, hiring an attorney well before a hearing is scheduled is a critical step in giving yourself the best possible chance of success.
There is a significant amount of work that goes into preparing for a disability hearing. In each case, the judge has an electronic file containing all the evidence submitted to the SSA. Part of the attorney’s job is to ensure that the file is up to date at the time of the hearing. The rules state that you must inform or submit all evidence, both favorable and unfavorable, to the judge within five business days of the hearing. This is called “the five-day rule.” By complying with this rule and submitting evidence in a timely manner, attorneys help clients avoid unnecessary postponements. When the judge is missing records and the file is out of date, they will often postpone the hearing or keep the record open for the submission of additional evidence. For someone who has waited for over a year for their disability hearing, a postponement is a frustrating outcome, especially when they have maintained consistent medical treatment throughout the process and that evidence could have been obtained without the need for a postponement.
Hiring a disability attorney well in advance of a hearing avoids these delays (typically we require at least two months to prepare for a hearing, and note that cases can get scheduled up to four months in advance, so conflicts with attorney’s calendars can occur if not retained until the hearing is scheduled). It is in your best interest to hire a disability attorney early on in the process, to give the attorney time to prepare for the hearing and to make sure the medical and evidentiary record is up to date.
Besides requesting updated medical records, obtaining supporting statements and questionnaires from treating doctors, and preparing the client for testifying, Social Security disability lawyers usually submit written legal briefs summarizing the facts of a case as they apply to Social Security disability law. This presents the legal “theory of the case” to the judge, and to preserve these arguments for appealing an unfavorable judgment. Because each case is complex and unique, attending a hearing armed with a legal theory of the case can focus the judge’s mind on the most important arguments for approving the case.
In addition to medical records, attorneys may also obtain third-party statements from family members, friends, former employers, and caregivers to support a case.
A Social Security attorney will also cross-examine the experts hired by the SSA to testify at the hearing. At all adult disability hearings, a vocational expert is hired to testify about a claimant’s past work, and to testify about the impact of certain functional limitations about the claimant’s ability to work. The burden of proof rests with the claimant to establish they cannot perform any work they have performed in the past 15 years. If proven, this burden shifts to Social Security to prove that the claimant can perform other work in the national economy. These burdens are the reason vocational experts are hired.
Typically, the judge will question the vocational expert at the end of a hearing, asking questions about a claimant’s past work and what impact, if any, certain workplace limitations would have on the claimant’s ability to perform past work or other work in the national economy. A trained Social Security attorney will protect their client’s interests by cross-examining the vocational expert and eliciting testimony that is favorable to the client. This often involves posing questions to the vocational expert that contain workplace limitations that prevent all work in the national economy, based on the most critical medical evidence in the record.
In some cases, the judge will decide to hire a medical expert at the hearing. The medical expert will review all the medical evidence submitted prior to the hearing (a reminder of the importance of hiring an attorney to obtain and submit evidence in a timely manner), and give opinion testimony as to whether a disability claimant has a condition that meets an SSA listing and, if not, what workplace limitations a claimant would reasonably have given the medical record. A trained disability attorney will cross-examine the medical expert, often raising critical evidence of disability to elicit testimony most favorable to the client. While every hearing is different, a trained disability attorney may provoke a medical expert to change their opinion after covering the most favorable evidence of disability. Even when a medical expert does not testify in favor of the claimant, a trained disability lawyer who conducts effective cross-examinations can elicit testimony that results in the judge disregarding the opinion of the expert.
A disability lawyer will zealously represent their client at the hearing by cross-examining the experts hired by the Social Security Administration, eliciting testimony favorable to their client, and by refusing to allow unfavorable testimony to go unaddressed at the hearing.
A trained Social Security lawyer will prepare the client to testify effectively at their disability hearing. The regulations state explicitly that hearings are informal, non-adversarial proceedings. In other words, you are not on trial when you appear to testify before an administrative judge. There is no opposing attorney to cross-examine you. However, a trained disability attorney will prepare you in advance on how to testify to an administrative law judge. For more on that, see our blog post on the subject of how to testify at your hearing.
A trained Social Security attorney will anticipate the questions the judge will ask, give advice on how to present your case, and in some cases, present the case by performing a direct examination of the client. The pre-hearing preparation familiarizes you with the hearing processes, gives you a chance to think about their answers to specific questions, and alleviates the stress of undergoing questioning at a hearing. Well-prepared, calm testimony puts you in the best position to succeed at the hearing.
Every case is unique, and in some cases, there will be “bad facts” in the medical record. Examples of a bad fact are evidence of drugs or alcohol abuse, treatment records indicating a high-functioning individual such as international travel or working out at the gym, or evidence that a claimant is exaggerating the disability. In many cases, these bad facts have explanations or mitigating circumstances rendering them less bad.
A trained disability attorney knows how to review all the evidence in a case file, and to prepare the client for questions from the judge about bad facts in the record. One reason to hire an attorney is to avoid hearing about the existence of a “bad fact” for the first time from the judge at the hearing. An attorney can provide guidance about how to handle bad facts as they arise, and will likely address the issue with the judge as part of the overall hearing strategy.
Trained disability attorneys know which type of opinion evidence should be elicited from treating physicians. There are certain questionnaires, called RFC (Residual Functional Capacity) assessments, that Social Security attorneys obtain from a treating physician. There are forms specific to mental health and various types of physical impairments. An experienced disability lawyer will obtain supporting statements from the treating physician, which is a crucial factor in SSA law, since the judge must evaluate medical opinions from treating physicians, including factors such as the supportability and consistency of a treating physician’s opinion.
The Many Benefits of Associating with a Disability Lawyer Right from the Start
From gathering the evidence to representing you at hearing, a disability lawyer takes care of every nook and corner of the case. Hiring a disability attorney from the beginning of the case can mitigate mistakes, ensure a smoother process, and know the rules going in. Trained disability lawyers will prepare you for what to expect during the process, give timelines so you can prepare and financially plan, and give advice regarding the optimal timing for a disability application.
A disability lawyer takes care of meeting the deadlines for applications, ensuring all the details are in line with the SSA’s policies, and more. A trained disability lawyer is intimately familiar with the strict deadlines associated with a disability application. By hiring a disability lawyer, you ensure that all deadlines are met. This avoids the frustration of having to start a case over if a deadline is missed, and can ultimately save months of waiting.
Hiring an attorney improves your chances of obtaining a favorable decision from a disability judge. According to a December 2017 report by the Government Accountability Office, disability claimants who were represented at their hearing were almost three times as likely as unrepresented claimants to achieve a favorable result.
Talk to a Social Security Disability Lawyer Today
At LaPorte Law Firm, we solely specialize in Social Security disability cases and know the Social Security system inside and out. We have experience representing thousands of people at all stages of the Social Security disability process, with a local presence in the Bay Area for the past 40 years.
From the initial application through the appeals process to the hearing and subsequent appeals, an attorney can help you complete the required forms, request and submit medical evidence, prepare you for your hearing, and make the appropriate legal arguments. If you would like to talk through your case with one of our attorneys, please give us a call for a free consultation to assess your case.
A disability lawyer should be familiar with all stages of the process, present a theory of the case for why a case should be approved, be familiar with the disability hearing process, including effective methods for presenting a case, and provide zealous representation at all stages of the process. Social Security disability can be a time-consuming, stressful process, so hiring a disability attorney who you trust and are comfortable with is important.
Yes! Initial applications are denied almost two-thirds of the time. The first appeal is denied nearly 90 percent of the time. Many applications are approved at the hearing level before an administrative law judge. If you are denied, call a disability lawyer immediately to discuss your options.
While it is true that the Social Security Administration denies many of the claims submitted, it is also true that you can win your case the first time you apply. The best way to achieve success the first time is to know exactly what you are doing, or retain a Social Security Disability attorney who does. LaPorte Law Firm has disability lawyers with decades of experience who can fill this role. We handle hundreds of disability claims each year, and most of them are successful the first time we try.
Attorney’s fees are 25% of the first retroactive payment to you by the SSA; however, the fee is capped at US$7,200 regardless of the amount of money you are owed by the SSA. There is no ongoing fee after you win your case. Because the SSA can take several years to adjudicate a disability claim, disability claimants are often entitled to a large check for retroactive benefits for the period in which they were waiting for their claim to be decided. Our fees automatically come out of that first retroactive check, so our clients never have to pay us directly.
Attorney’s fees automatically come out of the first retroactive payment of a disability award received by a client.
No, there are no ongoing fees after your case has been approved. Once the attorney has received their portion of the back pay benefits, no additional fees are required.
No, your attorney will not be able to charge a fee unless your case is successful, as Social Security requires Disability cases to be done on a contingency basis.