Today the National Organization of Social Security Claimants’ Representatives (NOSSCR) advised its members that HR 4532, the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ was signed into law by President Barack Obama on February 27, 2010.

This legislation is important because it permanently enacted fee withholding and direct payment of fees in Supplemental Security Income (SSI) cases and allows non-attorney representatives the option of being directly paid for representation of claimants in Social Security Disability Insurance (SSDI) claims and SSI.

Both of these provisions were enacted as a five-year demonstration project in the “Social Security Protection Act of 2004” that was set to sunset on March 1, 2010. By signing the bill on February 27, 2010, President Obama has allowed the Social Security Administration to continue to withhold fees for representation provided in SSI claims.

Importance of Fee Withholding in SSI Claims

Prior to SSI fee withholding, it was difficult for individuals pursuing only SSI claims to find representation. (SSI is a poverty-based disability program that is available only for individuals with little or no income or assets. Normally individuals that only qualify for SSI have limited work histories). Since there was no avenue for direct payment in SSI only claims prior to the demonstration project, it was difficult for legal representatives to be paid in SSI claims. Although the Social Security Administration would approve an SSI fee, attorneys were required to collect the fee directly from the individual that was awarded benefits.

I am happy to see that the SSI fee withholding provision has now become permanent. This will help individuals that only qualify for SSI payments to continue to receive representation for their claims. If this bill had not been passed, it is likely that a large population of disabled individuals would have lost access to legal representation.

Concern about Non-Attorney Representative Provision

The second provision of the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ made permanent a demonstration project that permits certain non-attorney representatives to have fees withheld and directly paid by the Social Security Administration. (This provision places qualified non-attorney legal representatives in the same position as licensed attorneys.) Although this provision was supported by NOSSCR, I have concerns about the impact this provision has on the quality of legal representation.

In order to qualify for fee withholding, individuals must only demonstrate that they have a bachelor’s degree or equivalent education, possess malpractice liability insurance, pass a criminal background check, pass an examination testing their knowledge of relevant provisions of the Social Security Act, and demonstrate ongoing completion of qualified continuing education courses. This is very different from the qualifications required of a licensed attorney.

Licensed attorneys are required to pass the State Bar Examination of at least one State in order to qualify to practice before the Social Security Administration. We are required to uphold the provisions of Social Security Administration, and are governed by professional conduct rules of the State (or States) that license us to practice law. Not only can our right to represent claimants before the Social Security Administration be stripped for unethical behavior, we can also face disciplinary actions from our own State and lose our right to practice law.

Enhanced Duties of Attorneys/Lawyers

As an attorney I am strictly governed in the handling of client money; in confidentiality of information I learn; in competency to perform my job; in management of my non-lawyer assistants; and in the content of my advertising materials. I must hold bachelor’s degree, have an accredited legal education, and pass an intense Bar Examination. This is important because legal rights are at issue when you are pursuing Social Security disability benefits. The representation permitted by this legislation would not normally be permitted by State Law.

I am not suggesting that non-attorney representatives are not capable of providing quality representation; however, I am concerned that they can advertise themselves in a way that does not make clear that they are not an attorney, and they are not required to adhere to the same ethical standards that an attorney must. I have seen non-attorney representatives engage in behavior that is intentionally misleading to clients and that would be a violation of the attorney rules of professional conduct. Although attorneys may also be guilty of this behavior, clients can file disciplinary actions that must be investigated when an attorney commits these acts. The Social Security Provisions fail to provide this same protection to disability applicants.

It is important that when an individual seeks representation, that they are aware of the experience and qualifications of their legal representation. Although a non-attorney representative can call himself or herself a legal representative, you must remember that these individuals are not required to have a formal legal education, and they are not required to follow the same ethical code that an attorney must.

For individuals seeking legal representation for Social Security Disability, remember that the fee permitted for a non-attorney representative is the same as an attorney representative. Realize that licensed attorneys are required by law to uphold a higher ethical standard and the violation of our professional ethics code can result in not only malpractice, but also the loss of the right to practice law. Inquire about an individual’s experience, qualifications, and legal philosophy prior to choosing a legal representative for a disability claim, and choose the individual that you think will best represent your interests.

This article was written by Steven Butler. Steven is a partner atLinarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Recently James publishing launched JamesDisabilityLaw.com. I was excited to see the launch of the site, as I am a subscriber of five Social Security Disability practice guides published by James Publishing. The practice guides help me stay informed of developments in Social Security Disability Law, and educate myself on unique issues that I do not see on a daily basis. These practice guides are a great resource that have helped improve the representation I provide to my clients.

I was disappointed to see that JamesDisabilityLaw.com is not as helpful for claimants. Although some topics on the website are useful for individuals applying for disability, advice provided regarding representation is not. I have previously written several articles on this site about the advantages of having an attorney, how an attorney can help you with your initial application, and how you can improve your application before applying. Since I previously discussed these topics in detail, I will not rehash the entire articles, but I will simply state that you should never be discouraged from obtaining an attorney as early as possible in the disability process.

My problem with JamesDisabilityLaw.com is that the site suggests that you should not obtain an attorney to help until you are denied at the reconsideration level. You are also discouraged from obtaining an attorney when initially applying for benefits. The site indicates that most observers agree that this timing works, but no authority is cited for this proposition.

In the “Common Social Security Disability Questions” section of JamesDisabilityLaw.com, it is again indicated that the best time to obtain an attorney is before an Administrative Law Judge Hearing. What is surprising about this statement, is question 6 indicates that two of the biggest mistakes you can make in the disability process are: 1) failing to appeal; and, 2) failing to obtain appropriate medical care.

Why I disagree with advice from JamesDisabilityLaw.com

The reason that it is important to have representation while pursuing disability benefits, is that an attorney will advise you on how to strengthen your claim. The three biggest mistakes that I find people make in initial applications are: 1) failing to properly document treatment received; 2) failing to list all medical impairments; and, 3) failing to properly answer questions in disability questionnaires. All of these errors remain in your file throughout the disability process. Although you can file amendments to your application in the future, I have seen many individuals denied benefits because they improperly answered questions when they were unrepresented.

I would never suggest that every individual that is applying for disability benefits requires an attorney when pursuing disability benefits; however, there are advantages for everyone pursuing disability benefits to have representation. Although attorneys will charge a fee for the representation that they provide, you should be advised to weigh the advantages of the assistance with the cost for the services. This should be an individual decision based on your specific circumstances.

General disability websites do not provide state specific advice

When reviewing General Information about Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments, it is important to note that there are differences in the disability process based on the state you live in. Although the disability standard is the same, I have also written several articles discussing the difficulty of being approved at the Administrative Law Judge level in Delaware. (See High Delaware ALJ Denial Rates, Impact of High Denial Rates in Delaware, and Fiscal Year 2010 Denial Rates Remain High in Delaware). Mistakes made at the initial and reconsideration stages can cause you to continue to be denied benefits in the future, or to lose eligibility for considerable past-due benefits.

Because of the high denial rate at the Administrative Law Judge level in Delaware, it is important that you take every step to be approved for benefits at the earliest possible time. Steps taken to strengthen your claim before you get to the Administrative Law Judge level will also strengthen your claim if you eventually require an ALJ Hearing.

Initial consultations for Social Security Disability are usually free

The great thing about the Social Security disability process is that attorneys cannot charge any fee without authorization from the Social Security Administration. Since authorization is needed in order to charge a fee, most Social Security disability attorneys see you for a free initial consultation before agreeing to take your claim. This free initial consultation helps you make an informed choice of whether representation would help based on your specific circumstances. Although many individuals are successful in obtaining benefits without the help of an attorney, with the growing backlog of disability claims and the high ALJ denial rate in Delaware, it is important that you make an informed decision before proceeding with an application without legal assistance.

I have forwarded my complaints to JamesDisabilityLaw.com, and I hope that my feedback will help improve the website. There are several areas on JamesDisabilityLaw.com that help educate you on the disability process, but I am just concerned that by discouraging individuals from obtaining legal assistance, they may cause more people to be denied benefits.

UPDATE: I received a response from Jim Pawell, President of James Publishing, shortly after emailing my complaints. I am happy to report that Mr. Pawell graciously accepted my criticism, and is very open to including opposing viewpoints of representation on his site. I am hopeful that areas that caused me concern will be revised in coming days. I also encourage others to forward suggestions to Mr. Pawell. I truly believe that the goal of James Publishing is to provide a site that is complimentary to the excellent practice guides that they publish. I will continue to explore this site myself and provide feedback that can assist individuals pursuing benefits.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Luckily, SSA has many services available online. The services are mostly easy to use, but caution is still necessary. Although many activities can be completed online, it is often still necessary to submit paper documents to complete the process.

The following are the most relevant online services for individuals that are pursuing disability benefits from SSA:

• Research Disability Requirements
• Request SSA Benefit Statement
• Check Status of Social Security Disability Claims
• File an Appeal of your Social Security Disability/Supplemental Security Income Denial
• File an Application for Social Security Disability Insurance Benefits

Although SSA has done an excellent job of providing online resources for individuals pursuing disability benefits, it is always recommended to consult an experienced legal respresentative before relying on the information found. SSA does not tailor information on its website to you specifically, and it is possible that information you find may not be accurate based on your unique circumstances.

Researching Requirements of Disability Programs

The SSA Website provides a wealth of details about SSA disability programs. One of the most useful tools is the Benefit Eligibility Screening Tool (BEST). BEST uses details that you provide to help determine which SSA programs, if any, you qualify for. Although this tool normally correctly identifies the programs that individuals may be eligible for, do not assume that the answers are always accurate. If BEST indicates that you do not qualify for benefits, I would still be available to help determine if the information that was provided is accurate.

My favorite part of SSA’s online services, is information that it provides to help you understand SSDI and SSI. An overview of the disability program requirements, application process, and the determination process are provided. There is also a section for Frequently Asked Questions about SSDI and SSI. Most information is general, but it still is a great educational resource. I provide much of the same details found on SSA’s website during an initial consultation appointment, but potential clients often find it helpful to have knowledge of the disability programs before we meet.

Request Social Security Benefit Statement

SSA normally sends a benefit statement to all adults with reported income several months prior to their birthday each year. The Social Security Benefit Statement provides information that is useful in determining eligibility for SSA disability programs. The benefit statement provides estimates of your eligibility amount for various Social Security Programs including disability, and helps an advocate determine whether you have sufficient work credits to qualify for SSDI.

If you have not received a Social Security Benefit Statement recently, SSA allows you to request a benefit statement from its website. It typically takes between 2 to 4 weeks to receive a statement after it is requested. I recommend that all potential clients request a Social Security Benefit Statement prior to applying for benefits. The statement provides the single best way of answering the question, “how much will I receive if I am approved for disability benefits?” If you do not have earnings information available when you meet with me, I am normally unable to answer that question. The Social Security Benefit Statement solves that problem.

There is no hazard of requesting your benefit statement without assistance from a legal representative, and I highly recommend that anyone considering applying for disability benefits request one.

Checking the Status of Your Disability Application

When you apply for SSDI or SSI you are provided with an application confirmation number. This number is provided whether you apply for benefits online or in person at your local SSA office. If you apply in-person, your application number is on your application receipt. When you apply online, the confirmation number is provided when submitting your application.

With an application confirmation number, you are able to check the status of your application through SSA’s website. Typically, the only information provided is that your application is pending. You are not provided with specifics of the process or alerted to problems with the processing of your application.

Although the information provided is not currently very useful, I expect that this will improve in the future. Currently, I warn my clients not to rely on any of the information that is found on the online status page. I have found that several times after an appeal is submitted, SSA’s website has not yet updated the status of the claim. If you are concerned about the information provided when you check on your status, I can work with SSA to obtain accurate information.

File an Appeal Online

SSA allows you to file an appeal of an initial denial or reconsideration denial of SSDI or SSI online. However, there are multiple steps that are necessary to actually complete the appeal. Although an experienced attorney is able process an appeal online without difficulty, an inexperienced individual can easily miss a required step when attempting to file an online appeal. If you fail to accurately complete your appeal, it is possible that you could lose substantial benefits or even eligibility.

I personally use the online appeal process for all my clients. It saves time for SSA because a claims representative does not need to enter all of the information by hand. It saves time for my office because we receive receipts confirming the submission of the appeal and I know the information was entered accurately.

The process is simple if you know what you are doing, but small mistakes can lead to the loss of substantial benefits. Before using the online appeal process, I would highly recommend obtaining the help of a legal representative. If you are unable to obtain help from an attorney, it is in your best interest to appeal in-person at your local SSA office.

Filing an Application for Social Security Disability Insurance Benefits (SSDI)

SSA encourages all individuals applying for SSDI to apply online. By applying online, you save valuable time for claims representatives. Instead of a claims representative having to take 30 to 60 minutes to meet with you to complete application, they simply review the information transmitted from the Internet and make sure that you have completed all steps necessary to apply for benefits. Since SSA resources are limited, online filings assist representatives with handling more claims.

SSA indicates that it takes an average of 30 minutes to complete an online application for SSDI. Although it is not very time consuming to complete, the answers that you provide will have a long-lasting impact on your eligibility for benefits. For individuals that are not well versed in the disability process, several mistakes can be made. Entering the wrong date can cost you several months or years of disability eligibility. Incorrectly providing information can also be considered fraud with criminal implications.

I agree that the online application is great productivity tool for SSA, but I am concerned that individuals can potentially harm themselves by completing an application without the help of an experienced legal representative.

The value of applying in person is that an SSA claims representative is also required to screen your claim for eligibility for other programs. When you apply online, you can currently only file an application for SSDI. Additional steps are necessary in order to complete an SSI application. Failure to apply for SSI can result in loss of potential financial and medical benefits.

I normally use the online application process to complete applications in my office. This allows my staff to review the information being submitted and confirm its accuracy. It is important to note that after you complete an online application on SSA’s website, several additional documents still need to be submitted before your application is actually complete. If you fail to submit all documents, your application may never be processed and you could lose potential benefits and even eligibility. If you need help filing an application for disability benefits, contact my office so I can determine if I can assist you.

Be Careful Using Social Security Online Resources without Help

Although I applaud SSA for embracing technology and using it to be more productive, many risk are involved with the online tools that have been made available. I recommend that individuals strongly consider scheduling a consultation with my office before pursuing Social Security disability benefits or appealing disability denials using the online tools.

The value of the free initial consultation is that there is no obligation when consulting my office for help. SSA Online services are helpful for individuals to educate themselves and obtain general information, but the services introduce inherent risks that were not present when you were required to interact with an SSA claims representative.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Most people do not realize that there is a clause in their LTD policy that indicates that if you are approved for SSDI, your LTD benefits will be reduced. Your LTD benefits are normally reduced by almost the entire amount of your SSDI (there is a normally a clause in your LTD policy that states that you will receive a minimum monthly amount of $50-$100, even if your SSDI is greater than your LTD benefit). This is why you are required to apply for SSDI if you are approved for LTD benefits. If you are approved for SSDI, your LTD company will issue an overpayment and require you to repay any amount that you receive in SSDI for the same month that your received LTD benefits.

Most individuals that are approved for LTD benefits sign a form acknowledging that they are being paid at their full LTD rate, but informing them they will be responsible for repaying a SSDI offset if they are eventually approved for SSDI. Once you are approved for SSDI, the LTD company will request a copy of your SSDI Notice of Award, and will compute how much you should have received on a monthly basis in LTD payments if you had received your SSDI payments when they were actually due. You must repay the difference between what you should have been paid by the LTD company and what you were actually paid.

It is important to remember that you do not have to use the legal representative offered by your LTD company. You can hire your own attorney to help you with your SSDI application. I normally recommend that individuals contact their LTD carrier prior to hiring their own attorney. It is important that you receive a written statement from your LTD carrier indicating that if you are approved for SSDI, you will receive a credit for the attorney fee before the LTD overpayment is assessed. If you receive a credit for the SSDI attorney fee, you end up having the assistance of a private attorney for free.

Reasons why you should consider obtaining your own attorney.

• The attorney will work directly for you. They will not represent the interest of your LTD company in any direct way. They will not share information with your LTD company without your authorization.
• You get to choose someone that you are comfortable with. Most of the legal representatives used by LTD carriers are national companies. You normally work with a non-attorney during the SSDI process, and you cannot visit a local office of the person representing you. If you choose your legal representative, you can make sure that you are actually working with an attorney.
• If your LTD benefits are terminated, you may also lose the legal representative that your LTD company hired. The legal representative provided by the LTD company may have a primary responsibility to your LTD company and not to you. If you are no longer eligible for LTD benefits, your LTD company may not have an interest in continuing to pay for your legal representation for your SSDI application.
• National legal representatives do not have local knowledge. The companies used by LTD carriers may not be familiar with the nuances of the local Social Security offices and the Administrative Law Judges in your area. Since they do not represent a large number of individuals in your area, they do not approach your claim with the same unique knowledge that a local attorney has.
• You support your local community. A local attorney normally lives in the same community as you. The local attorney pays local taxes, and uses the money that they earn to help other local businesses prosper. By obtaining a local attorney, you help your own community, and you help the local attorney stay in business so that they can also be available to assist friends and family members with similar issues.

Why it is important to pursue SSDI while obtaining LTD benefits.

Although you are required to apply for SSDI based on your LTD policy that is not the only reason that you should pursue SSDI. There are several other advantages for you if you are approved for SSDI.

• You may be eligible for SSDI longer. Most LTD policies define you disabled for up to 24 months if you are unable to perform the duties of your past work, or if you are unable to work because of a mental illness. After 24 months, you are normally only entitled to continue to receive LTD payments if you have a physical condition that prevents you from performing any full-time work. If you are under the age of 50, you will only be approved for SSDI if you are able to establish that you are unable to perform all full-time work. However, you are entitled to continue to receive SSDI with no time limit even if you are found disabled and remain unable to work solely because of mental illness.
• Medicare Coverage. If you are approved for Social Security Disability, you also become eligible for Medicare after you receive SSDI for 24 months. The only way that you can receive Medicare before the age of 65, is if you are found disabled by the Social Security Administration and receive SSDI.
• SSDI is not reviewed as often. Once you are approved for SSDI, normally the Social Security Administration only reviews your SSDI eligibility every 3-5 years (sometimes longer). Depending on your condition, it is common for LTD companies to review your eligibility as frequently as every few months. I have represented many individuals that have lost their eligibility for LTD benefits while a SSDI claim was still being decided. Since the Social Security Administration reviews claims so infrequently, it is likely that you will remain eligible for SSDI longer than LTD.
• To remain eligible for SSDI coverage. SSDI has a recent work requirement in order to qualify for benefits. You have to have worked in 5 out of the last 10 years prior to becoming disabled in order to qualify for SSDI. If you wait to apply for SSDI for an extended period after you stop working, not only are you potentially losing past-due benefits from SSDI ( you can only receive past-due SSDI payments for a maximum of 12 months prior to your application date), but you also risk losing your SSDI insured status. That means that you may not ever be able to submit a new application for SSDI if you are denied on the first claim you file.
• You protect your Social Security earnings record. If you fail to apply for SSDI and you are unable to work for several years, each of those years will show up with no earnings in your Social Security Statement. This can cause your retirement benefits to be reduced. However if you are approved for SSDI, any year that you are disabled, a “disability freeze” is placed on your Social Security record. In other words, the Social Security Administration will remove any years that you disabled from your earnings statement, and your Social Security Retirement benefit amount will not continue to be reduced for every year that you are not working.

Keep your SSDI attorney advised of any changes in your LTD Benefits

If you are pursuing both LTD and SSDI, it is important to notify your attorney if you are also applying for LTD and if you approved for LTD. It is important to remember that even if you are awarded SSDI, the majority of money that you are awarded in past-due benefits will have to be paid back your LTD company. Your should provide copies of any forms that your doctors complete for your LTD company, to your SSDI attorney. A knowledgeable SSDI Attorney can help advise you of any other issues that you may encounter as you pursue both SSDI and LTD payments, and can provide you with instructions on what to do if you are approved for SSDI and you also received LTD payments.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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First, thank you to all my wonderful current and former clients. Your confidence in me is the only reason that I have a job. Thank you for understanding when I have to deliver disappointing news or when I cannot immediately speak with you or return your call. Thank you for believing in my office and me, and for referring your friends and family when they need assistance. Despite the daily struggle that many of you face, you are still courteous, understanding, and patient as we navigate a difficult system together. I am always shocked when even the people that I could not help, refer a family member or friend to me. Thank you for believing in me and for trusting me.

I also want to thank the wonderful and underappreciated employees at the Social Security Administration, Delaware Disability Determination Service, and Office of Disability Adjudication and Review. You all have thankless jobs and are many times the focus of unwarranted criticism. Without the work that you do, many would have nothing to be thankful about today. Although I do not always agree with your conclusions (see Impact of High Administrative Law Judge Denial Rates on Disabled Delaware Residents ), I thank you for your hard work, your dedication, and your compassion. You each have difficult jobs with an extraordinary workload, but most of you still go beyond the duties of your positions to help others.

I also appreciate all of the community members that have enough confidence in me to continue to turn to me for help, or respond to my requests for help each day. I have the opportunity to interact with many wonderful doctors, attorneys, elected officials, and community organizers on a daily basis. Each of you assists me by referring new clients, responding to my requests, and by helping my clients. The support that you provide to your own clients, patients, and your communities, makes my job easier and improves the lives of my clients.

Finally, I would to thank my family, friends, and employees. Each of you is responsible for my success. You provide me with assistance and support when I need it, and understanding when I am demanding and unpleasant. I would not be able to accomplish all I that I do each day if it were not for your help. When I have difficulties in my own life, you provide a shoulder to lean on, and you help make my life easier. Thank you each for being part of my life.

So as you celebrate Thanksgiving today, do not think about what your live is lacking, but instead what you have. Even if you are in a difficult position today, take time to thank those that have supported you, and think of those that are less fortunate. And as each new days begins, try to remember to continue to take time to thank those who help you on a daily basis. Thank you again to everyone mentioned (and those that I have forgotten) and Happy Thanksgiving!

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The ALJ denial rates have serious implications on individuals that live in Delaware and have physical or mental disabilities. Because of the high denial rate, more Delawareans are approved at the initial application level than any other point in the Social Security Disability Process.

The Importance of Obtaining Legal Assistance Early

Since more Delawareans are approved at the initial application level, it is important to have help with your Social Security Disability claim as early as possible. The most significant change that I made in my practice since the Dover ODAR office opened in 2004, was actively representing more people at the initial application level. I discovered that clients denied by Dover ALJs could have been approved at the initial application level if additional medical evidence had been provided. When I started representing claimants in 2003, less than 10% of my clients were at the initial application level. Now more than a third of my cases are at the initial application level.

The initial application is important because you have a clean slate. No medical opinions have been provided that indicate that you can work, and you still have an opportunity to submit evidence that can be considered by the Disability Determination Service. If the State Agency Physician is able to review your treating physician’s medical opinion before providing his or her own opinion, it is more likely that your doctor’s opinion will be incorporated into the decision. Because of the importance of being approved early, I focus on building the strongest claim possible before my clients even apply for benefits. If you are approved benefits on your initial application, you never have to worry about the high denial rates of the Dover ALJs.

More Treatment is Necessary to Establish Disability with Dover ALJs

It is extremely difficult to be approved for benefits at an ALJ hearing in Delaware if you do not have specialist care. Even the Dover ALJs that have higher approval rates are unlikely to approve you for disability if you are only receiving treatment from a family physician. Although your family physician may be willing to treat you for every medical condition, it is important that you receive treatment that will improve your chance of being approved.

If you are suffering from a major disability, the Dover ALJs expect you to see a specialist for your condition. Family physicians are less likely to document symptoms to the same extent as a specialist. Since specialist limit their practice, it is also more likely that they will be aware of recent developments in your condition, and be able to offer treatment alternatives that may help. Having specialist care will make it more likely that you are one of the few that are approved if you eventually have to have a hearing in front of a Dover ALJ.

Your Treating Physicians must be Supportive

If your treating physician believes that you can work, it is unlikely you will be approved for Social Security disability benefits. I normally only accept new clients if a treating physician first documents limitations and explains how the limitations would interfere with your ability to work. If your treating physician is not supportive of your disability, the ALJ will only have the State Agency medical opinions to consider when deciding your claim. Since the State Agency medical opinions were likely the basis of your original denial, the Dover ALJs will cite the same opinions to deny you again.

Even when your treating physicians are helpful, it is still possible to be denied benefits. Several of the individuals featured in the New Journal had opinions from multiple doctors supporting their disability. I even routinely have had clients denied benefits when the opinions of Social Security Consultative Examinations supported their disability.

More Documentation is Necessary

Obtaining supportive medical opinions from your treating physicians is only the starting point in proving disability in Delaware. You must also be able to support your symptoms with objective medical evidence. If you have pain, you must have test results that establish the source of your pain. This is normal throughout the United States, the difference in Delaware is that the ALJs are often looking for you to have the tests repeated throughout the time that you are receiving treatment. It is not enough to have a test performed when you initially became disabled; the ALJs also want to see updated tests that are performed shortly prior to the ALJ hearing.

If you are experiencing pain, but have not had surgery performed, it is rare to be approved benefits by many of the Dover ALJs. Even if you had surgery, the ALJs will look at how invasive the surgery is when making a determination on whether you are disabled. Injections are not significant to most of the ALJs in Delaware, and if you are only taking medication for your condition and have not required more invasive care, it is unusual to be approved.

If you are suffering with a mental based disability, you must have treatment with a psychiatrist and a therapist/psychologist. If you fail to take medication, or abuse illegal drugs or alcohol, you have very little chance of approval (even if your doctor indicates that this is caused by your condition). If you are claiming memory or cognitive impairments, it is also important to have psychological and memory testing to document the severity of your symptoms. In my experience, individuals with purely mental based disabilities are rarely approved in Delaware unless they also have required hospitalizations for their condition.

Higher Costs to Pursue Claims in Delaware

Because of the higher standard of disability that we face in Delaware, I have noticed that the cost of pursuing disability benefits has skyrocketed between 2003 and 2009. The average cost in 2003 was below $150 at the ALJ level; today it is not abnormal to have costs of $400-$600. The reason for the increase is the additional evidence the ALJs are requiring. The ALJs want records from every doctor you have seen since your disability began (even if it is not relevant to your disability), and I often must request opinions from each doctor actively treating you. Since the ALJs do not like fill-in-the-blank forms, narrative opinions (that have cost as much as $1,000) are sometimes needed.

Additional costs are incurred for the additional treatment needed. If you have copays for every visit to your doctor, the additional care will result in more out-of-pocket costs. If you see additional doctors, it is also likely that additional tests and treatment will be suggested.

If you experience a unique condition that has flare-ups, it is important to notify your physician of every flare-up. Even when you have learned to manage your condition during flare-ups, it is important that the flare-ups be documented by your doctor. If your flare-ups are not mentioned in your treatment records, many of the Dover ALJs frequently find that the flare-ups did not occur at the frequency that you identified.

Dover ALJs do not Independently Review Your Disability

ALJs are supposed to independently consider all the medical evidence that is in your file and all testimony that is provided prior to issuing a decision. Before a hearing, it is not abnormal to submit over 100 pages of new medical records, and to provide medical opinions from treating physicians for the first time. Due to the length of time it takes for a hearing to be scheduled, normally the Social Security medical opinions in your file are at least one year old when the hearing is held.

The Chief ALJ of the Social Security Administration, Frank Cristaudo, stressed in the News Journal the importance of ALJs independence. He indicated, We allow the judges to make the decisions they think are appropriate. This stance is commendable, but many of the Dover ALJs fail to exercise their independence.

Although there is so much new information available for the first time at the ALJ hearing, it is common for Dover ALJs to ask, “Why was the Disability Determination Service (DDS) wrong in denying the claim?”. I must be prepared to explain why the State Agency Physician’s medical opinion does not adequately address your limitations (although it is obvious that these doctors never had the opportunity to review your new medical documentation), and I have been reminded by one ALJ that the State Agency Physicians are not biased like treating physicians.

This is a concern because the ALJs are not independently considering your disability. When the majority of Dover ALJs ask for Vocational Expert testimony, they ask the Vocational Experts to only consider limitations that were identified by the State Agency Physician, and when they issue a decision, the State Agency Physician (that never examined you) is normally awarded the most weight. It is rare for the ALJs identified by the News Journal to believe you or your treating physician. Even when they approve benefits, it is usually based on information that was previously provided by the State Agency Physician or a Consultative Examination Physician.

Approved for Less Benefits

The News Journal article briefly provided an example of one individual that was ultimately found disabled, but it was determined that his disability did not begin until 2 years after his employment ended. It is common for decisions from the Dover ALJs to be partially favorable. This means that although you are approved for benefits, the ALJ will find that your disability was not “severe enough” to cause you to become disabled until sometime after you originally stopped working.

ALJs in other areas commonly find that a claimant was disabled when their job ended, even if additional care was not received until a later date. For example, if you are suffering from depression and lose your job because of the condition, but did not start seeing a psychiatrist until after you had to be hospitalized 6 months later, other ALJs will find that your condition was severe enough for you to qualify since your job ended. With many Dover ALJs, you would not be approved until the date that you had to be hospitalized.

If you have a spine impairment, and went through therapy and injections before it was determined that you needed surgery, most ALJs would realize that your doctors wanted to try less invasive treatment before considering surgery. However, with the Dover ALJs discussed in the News Journal, I have had several clients that have not been approved until the date of their surgery. Although these individuals had experienced pain severe enough to prevent them from working for several months (to several years), the ALJs determined that they were not actually disabled until surgery was necessary.

One Dover ALJ is also routinely finding that individuals are only disabled for a brief period. An ALJ normally only awards a closed period of disability if an individual’s condition has actually improved enough to allow them to return to work (or the individual admits that they have the ability to return to work). This specific Dover ALJ routinely issues partially favorable decisions finding that a person was only disabled for a period of 12-18 months. The ALJ will indicate that an individual has improved even if the treating physician does not believe the symptoms resolved.

The News Journal did not provide specific details on the number of fully-favorable versus partially favorable decisions in the article, but I have information for each of the ALJs for fiscal year 2008. The ALJ that was discussed the most by the News Journal had an overall denial rate of 59.2% in 2008, but only issued fully-favorable decisions 22.3% of the time. The remaining 18.5% were partially-favorable decisions. For individuals age 18-49, this same ALJ issued fully-favorable decisions 10.3% of the time, and issued partially favorable decisions 19.9% of the time.

This is alarming because when an onset date is voluntarily amended, or an individual agrees to a closed period of disability, this counts as a fully-favorable decision. This suggests that if individuals did not voluntarily make these changes, the ALJ would have a much higher partially favorable rate (or possibly even deny more claims). Therefore, even some of the people that are approved by the ALJ with the highest denial rate are not actually receiving all the benefits they deserve.

Fewer People Offered Representation

Because the practice of law is a business, it is important that attorneys are able to make a profit when representing individuals. Although I would like to help everyone that contacts me, I must focus my limited resources on helping those people that have the most realistic chance of being approved for benefits. When fewer people are approved for benefits, it becomes harder to offer representation to all the people that need it.

The higher denial rates make it less likely that I can offer representation if your condition is not well documented. When I started practicing in 2003, I would routinely take cases where my client did not have adequate documentation of their disability. I would work with my client to help them establish the necessary medical care, and I would file appeals while they strengthened their case. I realized that the individual may be denied one or more times, but I knew that I could help them improve their future chance of approval.

Now when I meet with a potential client, I am unable to devote my resources to claims that are poorly documented. I have had multiple clients denied benefits that have had 4 or more supportive medical opinions from treating physicians. If it is difficult for someone with the support of all of their doctors to be approved for disability benefits, it is nearly impossible for an individual with little or no medical support to be approved.

The result of this change is that Delawareans that would have been offered representation in the past must now pursue benefits without legal assistance. All of the Delaware attorneys that I speak with that handle Social Security Disability cases are also being more selective in accepting clients. I currently only begin to represent 20% of individuals that request my help. If all of the Delaware attorneys are being more selective in offering representation, the net effect is that fewer claimants are represented.

Claims with Supportive Evidence are Not Being Appealed

If you are denied by an ALJ, you have a right to appeal your decision to the Appeals Council. The Appeals Council typically takes anywhere from 6 months to 2 years to issue a decision. In 2008, Appeals Council denied 73% of claims filed, and only approved 2%. Although Appeals Council remanded 22% of cases, this simply means that your claim will be sent back to the same ALJ that denied you previously. In my experience, the Dover ALJs are no more likely to approve you after your case has been remanded by the Appeals Council.

After being denied by the Appeals Council, you can file an appeal in United States District Court. Unless you can prove that you have very little resources and/or income, it cost $350 to file an appeal to United States District Court. The United State District Court for Delaware issued 30 Social Security Disability decisions in 2008, and remanded 43% for a second hearing (no outright reversals were issued). It took the District Court an average of 527 days to issue a decision in 2008. Between 2004 and 2008, an average of 27 Delaware District Court appeals were filed each year. During the same time, Dover ODAR denied an average of 642 people per year for disability benefits.

The only way that you are assigned a new ALJ for a second hearing is if you can prove bias or your original ALJ is no longer available. I have never had a case assigned to a new ALJ for a second hearing in Dover. If you are successful at getting a second hearing based on an Appeals Council appeal, it is likely that it will take a minimum of 18 months after the ALJ’s original decision before you get a new decision. For cases that are remanded from District Court, it is likely that you will have waited for 3 or more years before you receive another decision.

During the time that you are waiting for the appeals process, you are not receiving benefits. I spend approximately 20 hours preparing a file for the first ALJ hearing. If I have to file an Appeals Council appeal, I spend an average of 10 additional hours working on your claim. District Court appeals take me between 20-25 hours. When a case is remanded for a second hearing, I usually spend at least 10 more hours preparing the case for a second hearing. This does not include the time that my staff spends preparing your file and giving you updates.

When I decide to appeal claims to Appeals Council and United States District Court, I am making a significant investment in my time. If it is not likely that I can obtain a better decision by filing an appeal, I am unable to continue to pursue the claim even if the ALJ technically made errors in your decision. During the entire time that you are waiting for your claim to be decided, I am also not receiving payment for my services. If I spend 40 hours working on an appeal that is not going to be successful, I have spent an entire week of my time that I cannot devote to obtaining additional clients.

Because I am running a business, I have to make a cost-benefit analysis before I agree to take action on your behalf. Since there is only a small chance of receiving benefits after being denied by an ALJ, I appeal only a small number of claims past the ALJ level. I look for ALJ mistakes that are so obvious that I believe that 100% of claims that I appeal to Appeals Council or District Court should be approved.

My main consideration when I decide to appeal is not whether I believe that you are disabled (I believe that 100% of people I represent at hearings are disabled), but whether I believe that you could be approved if you have a second hearing. Based on the small percentage of cases that are filed in Delaware District Court (only about 4% of ALJ denials are appealed to District Court), it appears that other attorneys also take a similar approach. This means that even individuals that have supportive medical evidence and should have been approved benefits are not always appealing their decisions after an ALJ denial.

Conclusion

I am disturbed by what has happened at the Dover ODAR office because it overall is limiting your access to the legal system. Attorneys that were handling large numbers of Social Security Disability Claims in the past are reducing their caseload. Individuals that are unable to work and should be found disabled are being denied benefits. I am reluctant to appeal adverse decisions from the ALJs because it is unlikely that you will be approved for benefits even if your case is remanded. Instead of taking all clients that should be found disabled according to the law, I instead have to focus my attention on taking clients that can be approved based on how the Dover ALJs are applying the law.

I realize that there will always be variances in decision-making, the problem that I had hoped that the News Journal would highlight, is that the variance in Dover is not caused by ALJs exercising their independence, but by some ALJs misapplying the law. I personally have had at least 25 decisions where the ALJ found that my client was not credible because they attended their hearing and responded to questions. (If my client had not attended their hearing, the case would have been dismissed.) I am hoping that the attention that the Dover ODAR office receives from the News Journal articles will at least result in a consistent application of the law so that I can tell my clients that they will receive a fair hearing regardless of the ALJ assigned to their case.

News Journal Articles:

• Disability claims denied more often in Delaware
• After a lifetime of hard labor, body and mind are beaten up
• Woman felt like a ‘beggar trying to get something’
• With a family full of suffering, benefits don’t go a long way
• Hopeless situation sends mom to depths of despair
• Agency refuses to release information about complaints
• Dual roles of judges a source of tension
• Claim denials haunt some to death’s door”
• She fears judge is ‘just waiting for me to die’
• Disability denials troubling to leaders
• Routinely rejecting disability claims deplorable

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Part 3, What Happens During My Social Security Disability/SSI Hearing?

My prior posts in this series focused on preparing for an Administrative Law Judge Hearing, and what to expect the day of your hearing. This post focuses on what happens during the hearing. Unfortunately, every hearing experience is unique because there is no set structure that Administrative Law Judges must adhere to during a hearing. I normally provide my clients with a list of general topics that are discussed at an ALJ hearing, and provide specific information about the Judge assigned to their claim. (This is one of the reasons that it is helpful for you to be represented at the ALJ hearing. If your attorney is familiar with the Judge, they can describe any nuances of the particular Judge assigned to your case, so that you are better prepared for your hearing.)

General Areas that are Covered During Your Administrative Law Judge Hearing

1. Introductory Questions. The Judge normally asks you general information to confirm your identity. This includes your date of birth, Social Security Number and your mailing address. The Judge will normally also ask about any current income and your marital status.
2. Work Activity. The Judge asks you for details about all jobs you have performed in the past 15 years. The Judge needs you to describe your job responsibilities, how long you performed the job, and needs to know how much weight you had to lift in order to perform the job. Information is also obtained about any work you have performed since you applied for disability benefits. (If you are currently working, the Judge will have questions about your current work activity.)
3. Why You Cannot Work. The Judge will ask you to explain to him/her why you are applying for disability benefits. They are looking for information about the medical condition or conditions that are limiting your ability to perform work. It is important to express the limitations that you experience that would make it difficult to perform work on a regular basis and to explain how your work ended.
4. Description of Treatment. It is important that you are able to provide details to the Judge about the current treatment that you are receiving, and any treatment you have received since your disability began. The Judge is normally concerned about the medications you have tried, physical therapy completed, any surgical procedures that were performed, and any hospitalizations required.
5. Daily Activities. It is important that you describe activities that you perform on a day-to-day basis. The Judge wants to understand what it is about your activities that makes you different from individuals that are currently maintaining employment. It is important to be prepared to answer questions about how you spend your day, about your hobbies, and the places you travel. Judges are normally looking for detailed answers in these areas, and it is important that you remember to describe any rest periods that are necessary to perform your activities.
6. Functional Limitations. The Judge will ask you to describe how often you can perform various physical activities. The Judge asks questions about how far you can walk, how long you can stand, and how long you can sit. It is important to know how much weight you can lift, and what position you are in for most of the day. Be prepared to provide answers with specific durations of time you can perform activities when these questions are asked.
7. Problematic Areas in Your Social Security Record. The Judge will have questions about inconsistencies between your testimony and your medical records, problems with noncompliance of treatment, and questions about any alcohol or substance abuse. Be prepared to provide honest explanations regarding potential problems with your claim.
8. Expectations for the Future. It is common for the Judge to ask you whether you plan to return to work. Plans for future treatment, job training or education are also relevant to discuss. You normally have an opportunity during the hearing to briefly explain the impact your disability is having on your life, and what your goals are for the future.

Your attorney will have an opportunity to ask you additional questions if you are represented. Normally attorneys only ask questions that were not covered by the Judge, but some Judges ask the attorney to ask all questions during the hearing. I use your hearing as an opportunity to ask questions that resolve conflicts in your records and to provide the Judge with a better understanding of your limitations. If there are problems with medical records, I normally want my clients to have an opportunity to explain those problems, even if the Judge did not address the problems.

Expert Testimony

Experts present at your hearing are normally called to testify after your testimony is complete. This testimony is used to help the Judge decide your claim. There is usually no reason for you to directly interact with the experts during the hearing. They are there to provide details based on the medical evidence already in your file and the testimony provided during your hearing. (Experts are not present to provide you with job training, advice on how to obtain work, or to provide treatment or medical advice.)

Vocational Expert

• If a Vocational Expert is present, the Judge will ask the expert to describe the past work that you performed, and explain the skills and physical requirements of the work. The Vocational Expert will provide testimony to the Judge describing your work as you performed it and how it is normally performed in the national economy according the Dictionary of Occupation Titles.
• The Judge may also ask a hypothetical question to the Vocational Expert describing limitations that a hypothetical individual suffers and asking if any work is possible with the limitations described. The Judge will ask the Vocational Expert to consider the impairments that the Social Security Administration determined exist, and also any additional limitations the Judge believes are present based on your testimony and your updated medical information.
• It is normal for a Vocational Expert to provide testimony that jobs are possible based on the medical reports that the Social Security Administration previously used to deny your claim. In order for you to have a realistic possibility of being approved, it is important that the Vocational Expert indicates that no jobs are possible based on the limitations that you describe during the hearing, or that your doctors have described in written opinions.
• If you are represented, your attorney has an opportunity to ask the Vocational Expert follow-up questions. I usually ask the Vocational Expert if you could still perform any jobs provided to the Judge if additional limitations were considered, or ask if an individual could perform work based on limitations that your treating physician has indicated that you have.

Medical Expert

• Medical Experts are used when a Judge needs additional medical information and the details in your file are not sufficient to resolve medical issues.
• Normally a Medical Expert is asked to describe your medical condition based on reviewing your medical records, and to provide opinions about the severity of your condition.
• The Medical Expert is usually asked if your condition and medical records establish that you meet a medical listing, and to describe the evidence that they used to make that determination.
• Attorneys are also provided an opportunity to ask follow-up questions of the Medical Expert. I usually ask a Medical Expert questions to clarify testimony that has already been provided. I want to make sure that the Medical Expert has reviewed all evidence that is in my client’s file, and ask questions about whether it is reasonable for my client to be kept out of work based on the treatment received. (Medical Experts are rarely used in Delaware.)

End of the Hearing

After all testimony is provided, the Judge normally will allow your attorney to make a brief closing argument on why you should be approved for benefits. If all your records have already been provided, the Judge closes your Administrative Record. The entire hearing takes between 30 to 90 minutes, and it is rare that a decision is issued the day of your ALJ hearing.

If the Judge requires additional information after the hearing, the record may be left open for you to submit additional documentation from your treating physicians.� It is also possible that a Judge could schedule you for a Consultative Medical Examination or request additional testing.

Depending on the Judge assigned to your claim, you may receive the decision anywhere from a week to a year after your hearing. Judges have as long as is necessary to issue a decision on your claim. In Delaware, it usually takes an average of 45 to 90 days to receive an ALJ decision. The decision is usually between 8 to 20 pages long, and provides a detailed explanation of the decision the Judge made and the evidence that was used to issue the decision.

The purpose of this post was to provide you with a general overview of what to expect during your Administrative Law Judge hearing. My final post in this series will provide you with tips for making the most out of your hearing. If you have questions about any of the information provided in this post, please use the comment area below. Since this is a public website, please do not include any information in your question that would personally identify you.

Relevant Links:

• Questions Generally Asked During Social Security ALJ Hearing
• Social Security Best Practices for ALJ Hearing
• Office of Disability Adjudication and Review Hearing Office Locator
• Dictionary of Occupation Titles
• Part 1, My Social Security Disability Hearing Was Scheduled, Now What?
• Part 2, The Day of Your Social Security Disability Administrative Law Judge Hearing
• Part 4, Tips for an Effective Social Security Disability Administrative Law Judge Hearing

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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I ask all of my clients to keep me updated about their condition the entire time that I am representing them. I explain that some changes are so important to their case, that if they fail to provide me with updated information, I may have to terminate my representation. Although some of the items on the list seem obvious, they are included to reinforce their importance.

Items that you should notify your attorney about while a disability claim is pending:

Financial Changes

• You return to work (including under-the-table, part-time employment or full-time employment);
• You begin to receive Unemployment Insurance, Workers’ Compensation (including lump sum payments/settlements), Short Term Disability, Long Term Disability, Retirement Payments, any Social Security Payments, or payments from any other recurring source;
• You are approved for Medicaid, Cash Assistance (Welfare), Food Stamps, or any other Public Assistance Program;
• Your spouse loses his/her job, begins to receive Social Security payments (Disability, SSI, Survivor’s or Retirement), begins Unemployment Insurance, receives any payments from Worker’s Compensation, or is approved for any Public Assistance Program;
• You lose eligibility for benefits that you were previously receiving;
• You file for bankruptcy;
• Your home is foreclosed, or you are being evicted.

Personal Changes

• You get married;
• You get divorced;
• You have a child (or adopt a child);
• You enroll in school or vocational training;
• You are arrested, charged with a crime, or a warrant is issued for your arrest;
• You fail to pay child support;
• You move or change your address;
• You change (or disconnect) your telephone number.

Medical/Treatment Changes

• You begin treatment with any new healthcare providers;
• You are diagnosed with any new medical conditions;
• You are scheduled for surgery;
• You are hospitalized;
• You are involved in an accident, experience a new injury, or aggravate an existing injury;
• You stop pursuing treatment for your condition;
• Your treatment is terminated by any of your doctors for any reason;
• You begin to use illegal drugs or non-prescribed medications (using a friend’s prescription);
• You begin to abuse alcohol (or if you have any psychiatric condition, you use any alcohol);
• Your are noncompliant with your medication or treatment;
• Your doctors release you back to work.

Other Changes

• You receive any correspondence from the Social Security Administration; or
• You obtain another attorney to represent you for any reason.

These items are important because each of them can potentially have a positive or negative impact on your Social Security Disability Claim. Changes in your financial situation may affect your eligibility for Supplemental Security Income and Medicaid. Changes in your treatment may help the Social Security Administration better understand the severity of your condition.

The value that I add, is that I am able to advise you on how any of the changes listed will impact your claim. If you are making choices that harm your claim, I am able to discuss those choices and immediately explain the potential impact of your decisions. If you are involved in any other legal proceeding, I am able to provide you with advice on whether your Social Security claim could be affected by the outcome of the other matter. I believe that it is important for you to understand the disability process and any obstacles that can prevent you from qualifying for disability benefits. By constantly updating your file, I am able to make sure that the Social Security Administration has at least had an opportunity to consider your complete medical profile before a decision is made on your disability.

If you have questions about how any of the changes discussed can impact your Social Security Disability/SSI claim, it is important to consult with an attorney or the Social Security Administration.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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• If a potential client has been denied benefits, the date on the denial notice and a copy of the Social Security denial notice (if an appeal has already been filed, I also ask for a copy of the receipt that was provided by the Social Security Administration);
• Copies of all documents that have been received from the Social Security Administration and copies of any medical records that the individual has (an individual does not have to request medical records prior to an appointment, but if they already have medical documentation, reviewing the records helps me determine if the individual’s physicians are supportive);
• Information about any income the individual receives, and/or any income the individual’s spouse or significant other receives (this includes all monthly payments received from any source, for example: public assistance, workers’ compensation, unemployment benefits, disability benefits, or any other Social Security payments received);
• The date that the individual stopped working full-time as a result of their medical condition, and information about any attempts at work since they last worked full-time;
• The individual’s medical diagnosis, and a description of the symptoms that prevent the individual from working (the limitations that are experienced as a result of the medical conditions are often more important than the actual diagnosis);
• Names and phone numbers for every doctor that the individual has seen since 12 months prior to the time they stopped working;
• Approximate dates that the individual began treatment with each doctor they are treating with, the date of their last visit, and the date of the next scheduled appointment;
• A list of any tests that that an individual has had performed and the approximate date of the test;
• Dates of any inpatient hospital visits or any emergency room visits;
• Dates and descriptions of any surgeries that have been performed;
• A list of all the medications that the individual is currently taking;
• A list of jobs that the individual has performed for the past 15 years; and
• Names of any other attorneys that are representing the individual for any reason (including Workers’ compensation, Personal Injury, Family Court, and Criminal Matters).

The information specified is needed to help determine if I can assist a potential client with their Social Security Disability/SSI claim. By compiling the necessary information prior to an appointment, I am able to make a more informed decision if I can help the individual. The more information that is available when I first meet with a potential client, the more likely it is that I can make a decision about representation during the initial appointment.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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I normally use the same structure for all of my Social Security Disability/SSI consultation appointments. What is surprising to many individuals that meet with me for the first time is that I normally spend 10 to 15 minutes reviewing information that is not viewed as being directly related to an individual’s disability. This information is ultimately important because it allows me to determine whether an individual qualifies for any Social Security Disability program.

1. I Determine the Individual’s Current Status

I begin all my appointments by determining where an individual is in the Social Security Disability Process. If the individual was denied benefits, I begin by reviewing the denial notice. The denial notice provides information on the next available appeal, the deadline for filing an appeal, the evidence that was used for the determination and the programs that the individual applied for.

If the individual is still working, I need to make a determination of whether it is possible to apply for benefits immediately, or if the person must end or reduce employment first. If the individual has not applied for benefits, I help determine if a disability application is appropriate.

2. I Compile General Information and a Medical History

After I determine an individual’s current status, I obtain details that help me determine if they qualify for Social Security disability benefits. I begin by reviewing the nonmedical requirements of the Social Security Disability programs. I obtain information about current income, resources, and income/resources of a significant other or spouse. I ask for information about the individual’s work history and past earnings. With this information, I am able to determine if a potential client meets the nonmedical disability requirements.

If an individual qualifies non-medically, I obtain details to determine if they meet the medical qualifications for Social Security Disability. I determine how the disability began, when an individual last worked, and how the individual decided to stop work. I ask why an individual remains unable to work. Although I am concerned about why an individual initially stopped working, I am equally concerned about why they are unable to return to work. If an individual’s condition has improved since they last worked, I explore the possibility of pursuing benefits for only a limited period until the improvement occurred.

I ask potential clients to provide me with a list all their medical impairments/conditions. I ask that conditions be included even if they are not directly related to the reason that the individual stopped working. I ask the individual to describe how the medical conditions affect their ability to perform activities, and ask for limitations that they experience because of the condition. It is important that the individual provide details on both physical and mental symptoms they experience.

After details are provided about the medical condition, I ask for details about the treatment. I ask for the name of every Doctor that has been seen, and any medication being used. I ask about past surgeries, hospitalizations, physical therapy or any other treatment that has been received. I normally want details of all treatment since at least one year prior to the date that the individual last worked.

3. I Describe the Disability Requirements and the Disability Process

After compiling information about the medical and nonmedical requirements of the Social Security program, I focus my attention on educating the potential client. I explain what must be proved in order for an individual to be approved for benefits, and discuss the disability process. I review the general waiting time for a decision and the average approval rates at each level of the Social Security Disability process.

If I perceive any potential problems, I also discuss those with the individual. I explain the impact of noncompliance and substance abuse, and I review the importance of regular treatment and specialist care. Finally, I discuss the likelihood of success based on my experience.

4. I Decide if I Will Offer my Representation

Information that I previously gathered helps me ultimately decide if I am willing to represent an individual. Although ideally I would represent every individual I meet with, it must be acknowledged that not every person that applies for Social Security disability benefits is disabled. I use my experience and knowledge of the Social Security disability program to make an informed decision on whether a potential client will benefit from my assistance.

If I am unable to help an individual, I provide an explanation of why I cannot assist. I provide recommendations for other courses of action, and explain how to better document their condition for future success. If I think I may be able to help in the future, I provide detailed instructions of the actions that must be taken before I can meet with the individual again.

If I am able to offer my representation, I describe the services that I will perform on behalf of my potential client. I explain the initial actions that I would take, and describe the actions that I expect to occur in the future. I review the fee agreement, and explain what costs may be associated with the claim. I provide advice on steps to be taken to improve the likelihood of success and answer any questions that will help an individual decide whether they would like my assistance.

5. The Potential Client Decides Whether to Accept my Representation

After I have decided that I can represent an individual, it is up to the individual to decide if they would like my help. The potential client must decide if the services that I have offered would be valuable to them in the disability process. The decision must be made of whether the individual is comfortable with my office, and whether they believe that my services can have a positive impact on their disability claim. The structure of my consultation appointment is designed to make the decision on hiring me easy for the potential client. I lay the groundwork so that there are relatively few questions left after I have offered my representation.

If an individual decides to accept my representation, a number of forms are signed. I review the forms with the individual and explain why they are needed. I provide a written fee agreement to my new client and take any steps that are necessary to continue the Social Security Disability process.

6. Final Thoughts on the Social Security Disability/SSI Consultation Appointment

It is important to realize that my decision on offering representation is not based on judgments of the potential client as a person. Since I represent individuals on a contingency fee basis, I must be realistic and honest when evaluating claims. My goal is to provide an honest assessment of the disability claim, make potential clients comfortable with the process and to set expectations of the services that will be performed by my office.

If you are facing the Social Security Disability process, I highly recommend that you consult with an attorney.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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