1. You should not file for social security disability just because the “experts” tell you to.
It can be one of the hardest decisions in life. A physical or mental illness is limiting your life, including the ability to work and make a living. Many eventually come to ask these questions:
“Should I file a claim for social security disability?”
“Will I qualify for social security disability?”
These can feel like very difficult questions to answer. No one plans for or expects illness or injury in life that effects their ability to work. Surely those considering disability need the opinion of “experts” such as disability lawyers and doctors, right? Shouldn’t you ask the question of the professionals first?
No. Not without asking yourself some hard questions first.
When someone asks me if they should file for social security disability, I “invert” the question, starting with a consideration of what the alternative to social security disability for the questioner would be, as follows:
“If you don’t file for social security disability, what will you do?”
Why is this question important? Because it brings the question back to your opinion. It forces you to examine what you know about yourself and your condition. For example, if someone says that if they did not file for social security disability they would go back to work, this tells me one important fact: they don’t really believe that they are unable to work. On the other hand, if they tell me that if they cannot get social security disability they will have to sell their house and live in a homeless shelter, I know that they believe they cannot work – because no one would choose to do that.
But what about the opinions of others, like family, disability lawyers, clinic or hospital staff or doctors – don’t they count for something? Yes, these opinions may be one of the many factors you consider, but realize that the “experts” have a fundamentally different point of view:
- Disability lawyers and especially large national disability firm may be looking at you through the lens of their business objectives. Your question “do I qualify for social security disability” is likely translated by the firm that makes a living handling disability cases to this question only: “do we have a decent chance of winning this case?”
- Medical professionals – particularly public hospital and mental health clinics -are interested in your qualification for social security disability so you will get Medicare or Medicaid.
- Your friends and family may just feel sorry for you and want you to get some money coming in the door.
The most important opinion on whether you can or cannot work is YOU. You might not be an expert on social security disability law but you are the world’s greatest expert on your abilities, your pain, and your body. Listen carefully to yourself first.
2. Your disability lawyer can help you – but not in the way you might expect.
Most Americans have seldom worked with or hired attorneys – much less social security disability lawyers, since filing for social security disability is (usually) a one-time thing. Most people though do know that disability cases often end up in a hearing before an Administrative Law Judge, and that disability lawyers are paid on a contingent fee basis.
So its easy to see social security disability lawyers as being like personal injury or trial lawyers. When looking for a disability lawyer they assume they need an aggressive, confrontational and tenacious “pit-bull” of a lawyer to demand social security award the benefits they deserve.
Nothing could be further from the truth. A social security disability hearing is not adversarial – there is no attorney for the government that will be arguing against your claim.
A good social security disability lawyer, however, will do a lot to assist you. She will collect and review the medical records, she will seek a concise and coherent statement from your doctor, and prepare you for the ALJ hearing by helping you focus on what is important to winning your case. But leave the “junk yard dog”, “I’ll hammer and hammer” lawyer to car wrecks.
3 . Part-time work is unwise and bad for your case-but vocational rehabilitation/training is good.
This is one of the many social security disability paradoxes. Social security administration personnel will tell you “can work” while waiting for social security disability approval if the monthly wage is under the “substantial gainful activity” amount. I believe any work activity prior to disability approval is unwise. But participating in vocational rehabilitation is good. For many, this can seem inconsistent: you mean “training” for work is good, but actually working is bad? In a word, “Yes”. Part-time work below the substantial gainful activity threshold raises concerns in the judge’s mind: is this person just keeping their work activity “under the radar” to get disability benefits? Participating in vocational rehabilitation, on the other hand, tells the administrative law judge that you are trying to better yourself and exploring options beyond being on disability the rest of your life.
Few disability lawyers counsel their clients to seek out state-sponsored vocational rehabilitation. These folks are an exception.
4. Maintaining medical care needs to be the highest priority in your life.
Social Security disability applicants are in a world of hurt not just physically and emotionally, but also financially. All good social security disability lawyers know that medical treatment – ongoing and consistent – is key to winning. But most of us disability lawyers are reluctant to tell you in frank and stark turns that it is simply indispensable.
Persons with medical insurance through their employer are typically afforded the right to continue to be covered under the employer medical plan under COBRA. And just as typically, most persons who just lost their job can ill afford the high COBRA premiums required to stay insured. Accessing indigent care medical care is humiliating and a rude awakening for those accustomed to high-quality medical care.
Eliminating other major family expenses to pay for medical insurance is equally humiliating, and we disability attorneys have a hard time telling our clients they need to sell that second car, send their spouse to work, or downsize their home in order to keep their medical insurance. But the sad fact is that you must make those painful choices if you expect to win your disability case. Look at it this way: your wife can quit that job, and you can buy a second car once you win your social security benefits.
5. Being on social security disability can kind of sucks.
The struggle for social security disability benefits and the horrible economic privation without a paycheck can make it feel like all will be well once the disability comes through. But life on social security disability is no bed of roses. The social security disability benefit is meager, an average of $1,197, and a maximum $2,788. Disability beneficiaries are subject to periodic reviews which can result in termination of benefits if social security can prove that you have improved sufficient to return to work. Because a disability cessation does not involve a potential back benefit payment, you will not be able to hire an attorney on a contingent basis like you did when you won your disability (i.e., you are going to have to come out of pocket to pay a lawyer). Getting a job after years on disability, with an eroded job history and skill set, is a major challenge.
6. Your intense focus on winning your disability benefits may be hurting your claim.
This is perhaps the biggest paradox in the strange process of securing social security disability benefits. Your disability lawyer knows it, but she is reluctant to tell you this simple fact:
You may be trying too hard.
Maybe you are checking case status every 2 weeks. Scouring the internet for tips on how to win your disability case. Trying to educate social security about your condition by providing pages of explanation or reference materials you think will help them understand just how sick you are.
There is a simple concept called the law of “reversed effort”. Two influential philosophical writers, Aldous Huxley and Alan Watts, have noticed this phenomenon occurs when conscious will is applied to achieve results. Sometimes if one is to apply more conscious effort in hopes of increased results, he will run into diminishing returns for his effort. More effort does not equate to better results.
It is hard for your disability lawyer to tell you to “lighten up” for because it seems patronizing and insensitive: “doesn’t she realize how important winning my disability is?”
But the reality is that your obsessive efforts to convince social security that you are disabled can have the opposite effect. Thorough and comprehensive efforts to persuade the government you cannot work such as long narratives belie an energy level on your part that seems inconsistent with being disabled.
It is particularly hard for your lawyer to tell you this because she is worried you will think she intends to take a lackadaisical approach to your case. But there are points in your long road to disability benefits where philosopher Watts words are well taken:
“Muddy water is best cleared by leaving it alone” –Alan Watts
7. Your money plight, your virtuous character and your struggle with disability denials and “red tape” are irrelevant (almost).
I have been handling only social security disability only since 1991 – and I screen my own phone calls. I have heard countless Texans tell me their disability problems, and I am struck with how often people focus on the hardship they have endured. They speak of having to sell their house, or worse, mortgage foreclosure. They speak of how long they have worked and paid “into” social security. They relate stories of social security administration foot-dragging, losing paperwork, or sending them to see doctors. This is certainly understandable, but unfortunately is not what is at issue in a social security disability case.
I sometimes see this same emphasis on the economic hardship and the unfairness of the situation repeated in administrative law judge hearings – despite my pre-hearing coaching to the contrary So am I saying that social security does not care if you are in foreclosure because I cannot work? They don’t consider that you have worked all your life?
I am saying that the most important issue in your social security disability claim is whether you meet the legal definition under the Social Security Act for disability. But social security disability lawyers can find it hard to tell their clients that, as difficult and sad as you economic situation may be, it is not going to be what the administrative law judge bases her decision on.
8. You might not win, and it is no one’s fault.
Bad things sometimes happen to good people. All disability lawyers have lost cases for claimants who should have been approved. No one can control what a social security disability Administrative Law Judge decides. You can drive yourself bats thinking “if-only” the administrative law judge had this evidence or that evidence the result would have been different. But with most cases there is no reason to think that any individual item of evidence would change the decision of the administrative law judge.
9. Your chances of winning if you are truly disabled and you follow your disability lawyer’s advice are very high.
“What are my chances of winning?”.
We social security disability lawyers here this question all the time. Attorney are often cautious in answering this question. The last thing we want is to lose and hear a client say, “I thought you said I was going to win?”.
Despite the widely understood belief that “social security disability is hard to get” you are likely to be approved if you are truly disabled. Don’t be discouraged by the statistics showing that about half of those going to an administrative law judge hearing are denied. That “denied half” includes those with alcohol and drug addiction claiming they have “dual diagnosis” mental problems, or mothers seeking SSI for a child simply because he has a hard time paying attention in class. They are not you!
10. Not winning your social security disability might not be the end of the world.
Many years ago I took a taxicab from the airport on the way to a disability hearing in Houston. The taxi driver was friendly and talkative, and when she found out that I was on the way to a disability hearing, she told me about how she had applied for disability several years ago and was denied by an Administrative Law Judge. She said she had to give up on her disability claim, and started driving a taxi.
“Well, do you like driving a taxi?” I said. She responded that she loved it. For this lady I am sure that the disability denial several years prior at the time felt like a disaster. But for her it may have been a blessing in disguise.
It is also possible in most cases to refile a claim for disability. There are new medical treatments and procedures coming out every day that might get you back to health and work.
Your disability lawyer doesn’t want to tell you this because she fears you might view it as a sign she is not going to try her best to win your disability claim. Not winning your disability case is bad, I know. But don’t assume it is a catastrophe from which you will never recover.
In the last 25 years of handling only social security disability in Dallas Texas, I have seen the waiting time for the Administrative Law Judge hearing go up, and go down. But it has never gone down to anything close to an acceptable level. Clients asking me all the time” “Why does it take so long to get a hearing”? (Attorney Nick Ortiz has written a very good article on the subject as well).
First lets look at what the hearing wait times and hearing request backlog looks like in Dallas Fort Worth and throughout the nation. The below chart show that in the last 4 years the waiting time for a hearing peaked in 2017 at 605 days. (Ponder that staggering number for a moment). But the good news is that the wait time went down in bot 2017 and 2018. As you can see the Administrative Law Judge hearing wait time for 2018 was 538 days.
So how do the waiting times in the 3 social security disability hearing offices in the Dallas Fort Worth area look? Here are the most recent numbers for DFW:
|Hearing Office||November 2018||December 2018||January 2019||February 2019||March 2019|
|Dallas Downtown||12.5 months||13 months||13 months||13 months||12 months|
|Dallas North||10 months||10 months||11 months||11 months||11 months|
|Fort Worth||12 months||12 months||11 months||11 months||11.5 months|
But back to the question I get 2-3 times a week for the last 25 years: WHY? Well, the simple answer is that the disability hearing offices incoming hearing requests (receipts) have exceeded the number of case dispositions for many years now. Not a very satisfying answer, is it? Social security claims that social security disability applications have been going up each year for many many years and that Congress has not provided sufficient resources (i.e, money) to handle the backlog.The numbers are really shocking to most people: it takes over year to get an ALJ hearing in Dallas Fort Worth? And that is not from the initial application, it is from the actually hearing request.
Those skeptical of government (nearly everyone now?) suspect ODAR to be a lazy bureaucracy always looking for more funding and filled with slackers who cannot be fired because of strong government unions. Partly right. But my experience in the past 25 years is that there are dozens of hard working staff and ALJs in Dallas Fort Worth that are working harder than most of us have to help disabled Americans. When considering the growing Hearing Wait, I would urge consideration of the following:
1. The Administrative Law Judge Hearing is by Nature Time-Intensive
Setting up and conducting the ALJ hearing takes a lot of time on the part of staff and the Administrative Law Judges. Many claimants don’t show up for their hearing, and the hearing office must give them an opportunity to explain why they were a ‘no-show’. People come to hearings without an attorney or representative and the ALJ must give them the chance to get an attorney if they want. Even though they have been waiting for over a year, some people fail to secure representation, wasting valuable time and resources.
2. ALJ’s are duty bound to develop evidence.
For 25 years one of top priorities in representing Dallas Fort Worth social security disability claimants is to come to the ALJ with all medical evidence in front of the judge and up to date. This can be a challenge, and ALJs routinely give claimants and their representatives more time to secure missing evidence after the hearing. Sometimes a claimant has not been seeing a doctor very much, so the ALJ will order a consultative examination at the government’s expense. Moreover, more TV national social security disability firms are getting into this practice that often fail to develop the case causing significant delays. One firm, Citizen’s Disability, requires that their attorneys formally object to every Vocational Expert’s credentials, requiring ALJ’s to waste their time responding to their objections in writing. They needless extending the length hearings with repetitive questions to the vocational expert.
3. Increased Disability Applications Following the 2008-2009 Financial Crisis
There is significant evidence that good paying blue collar jobs are not coming back under any President. The reality for people over 50 that lose a job is that it is very difficult to find another job. Many are applying for disability now that in the past would keep working. Its not that they are faking; they have genuine health problems, but if they had a jo that would somehow force themselves to work.
4. Congress has no appetite for proving social security with more money
The social security admistration has come under intense criticism, with some good reason, in the last fews years for failing to monitor disability claimants, and paying benefits when they should not. Congress is not likely to open themselves up to critics in the conservative media who would contend they are “enabling” more government dependence but giving the agency added funding.
So it is not a pretty picture, but consider this: so-called “liberal” Canada does not provide for an administrative hearing for disability claimants. They have no opportunity to sit in front of a disability decision and tell their story. And consider delays like a judge ordering a consultative exam, or giving a claimant a chance to reset a hearing to get a representative. These delays would not happen if the judge just denied the claimant and sent her on her way.
So a large part of the delay in getting your ALJ hearing is that you are being provided substantive rights we all should be proud of; rights you will be happy you have when it is your time to have an administrative law judge hearing.
Vocational rehabilitation is essentially the process of preparing for, applying for, and securing employment. The goal of vocational rehabilitation is to enable persons with functional, psychological, developmental, cognitive, and emotional disabilities or impairments or health disabilities to overcome barriers to accessing, maintaining, or returning to employment or other useful occupation.
The Rehabilitation Act of 1973 (and as amended in 1974) extended and revised the authorization of grants to States for vocational rehabilitation services, with special emphasis on services to those with the most severe disabilities. In Texas the Department of Assistive & Rehabilitative Services provides these vocational rehabilitation services to Texas residents with disabilities. More information can be found at http://www.dars.state.tx.us.
The Social Security Administration has a policy of referring social security disability applicants to state vocational rehabilitation services if they meet a specific criteria. If the disability applicant meets the “screen-in” criteria, they are to be referred to the appropriate state agency for rehabilitation services. In practice, social security does a very poor job of screening disability applicants for vocational rehabilitation services.
Qualification for social security disability requires an inability to do any work of any kind. So from the claimant’s perspective there is little reason to access vocational rehabilitation services. But from social security’s perspective of assessing whether the claimant is or is not disabled, a referral to vocational rehabilitation could make sense. However, social security need not deny a claim (finding the claimant capable of work) prior to the “screen-in, screen-out” decision for a vocational rehab referral. Social security disability claimants need not have applied or been approved for social security disability benefits in order to seek the assistance of a state vocational rehabilitation office. But once a claimant starts the social security disability process, or has been approved for social security disability, does it ever make sense to seek vocational rehabilitation services? The surprising answer often times is “Yes”, but the decision and it consequences are very different when applying for disability and when actually receiving disability benefits. Let’s consider them both.
Vocational Rehabilitation Services During the Social Security Disability Application and Appeal Process
As noted above, applying for social security disability – with its requirement of total inability to work – and seeking vocational rehabilitation services seems contradictory. And unfortunately in the state of Texas at least Department of Assitive and Rehabilitative Services personnel have often pushed social security disability applicants away. Perhaps this is based upon a belief that social security disability applicants are not open to vocational rehabilitation given that they are seeking total disability. In my experience as a social security disability lawyer in Texas for over 25 years, it seems state vocational personnel often “invite” the social security disability applicant into talking about what they think they can do or why they are seeking social security disability. Based upon the answers typically provided, vocational rehab personnel usually deny services, saying there is “nothing they can do” because the claimant alleges total disability.
Despite these significant roadblocks, it is usually wise for social security disability applicants to seek vocational rehabilitative services at their state agency. There is not charge for the services. As part of the screening process, the state vocational rehabilitation service will secure a psychological consultative examination (focused on whether the individual is capable of “rehabilitation” and vocational training. This examination can be very helpful is proving qualification for social security disability.
In addition, Administrative Law Judges (ALJ) who will decide the disability claim at the hearing stage are usually more favorably inclined to those seeking vocational rehabilitation services. This action shows the ALJ that the claimant has initiative and is not just wanting to “get on the dole”. And if the vocational rehabilitation results in securing better employment, the claimant is much better off than being on social security disability.
Despite these advantages to pursing both social security disability and vocational rehabilitation services at the same time, claimants are reluctant to approach the state vocational rehabilitation service. They often feel vocational rehabilitation will hurt their disability case, and will make them look inconsistent. I advice my clients to approach DARS in Texas with a careful “script” to avoid being sucked in to statements DARS will use to deny them vocational rehabilitation, along these lines:
“My attorney has told me that I have the right to vocational rehabilitation services. I cannot do my old job, and I really cannot see other work that I can do, but I want to explore whether I could be trained to do a new job”
Vocational Rehabilitation Services After Winning Social Security Disability Benefits
Social Security Disability recipients can access vocational rehabilitation services via the “Ticket to Work” program. Claimants cannot be taken off disability while participating in the Ticket to Work program.
Of course you can. No one has to keep an attorney they are unhappy with. But whether you will have to pay for that attorney’s services is another matter. Social security disability attorney haves the right to ask for a Fee even if you have parted ways at the time your claim is approved. Take a careful look at the contract that you signed. It will conform to the strict rules social security has set out in the regulations.
Whether it is wise or fair ,however, to fire your social security disability attorney is another matter.
I probably field 2 or 3 calls a day from folks wanting to fire their attorney and hire me. I urge them to take a careful look at why they are unhappy with their lawyer. Often times people are frustrated with the delays, and have the unrealistic expectation that the attorney should be “speeding things up”. Because the social security disability approval process is so long, many feel the attorney “is not doing anything”. I always tell people, however, to give the attorney a chance to respond to their concerns. Many times the attorney has done all that can be done, or they have a specific time frame in which they prepare a case. When your case reaches that stage your case will be front-and-center.
Other times claimants are unhappy with calls not being returned. This is a practice the attorney should remedy, but realize you and your attorney are in very different places: social security disability lawyers must handle a high volume of cases to make a decent living, whereas most disabled persons have a lot of time on their hands.
I often find that the understandable frustration folks have with the social security administration gets transferred to their attorney. Don’t assume your attorney is part of the bureaucracy; he or she went into this practice to help people. Give them the benefit of the doubt!
If you cannot settle your differences with your disability attorney, ask them to withdraw. They may, or may not, waive their right to a fee. If they do not waive their fee, they will have to file what is called a Fee Petition when you win your case. This is a request to the Administrative Law Judge that she approve the fee requested by the attorney. If you disagree with the fee requested, you will have the opportunity to tell the ALJ why you think the fee is unfair.
Often times in this situation where an attorney has been fired and does not waive her right to a fee, their is a new attorney involved. In this case both attorneys will have to file a Fee Petition. Realize, however, that all attorney fees paid out on your case in total will not exceed 25% of your retroactive disability benefits.
In no particular order, here are the top five “case-killing” responses to the question that all Administrative Law Judge’s will ask: “Why can’t you work?”
1. “I can’t find a job. No one will hire me with my medical background”
The ALJ wants to know why you think you can’t work. Anyone hearing this answer will immediately assume that the problem is not the inability to work but rather the inability to find a job. Social security disability benefits are for those unable to perform work, and is not intended to address the problems of securing work. This is true even if the claimant feels that there medical condition is keeping them from getting a job. For example, folks often say that there medical history is a problem for prospective employers, and often quote would-be employers as saying that hiring them is a risk to their Workers Compensation or medical insurance plan. Implicit in this answer is a belief by the claimant that she can work, and that the problem is not being able to get a job. Social Security Disability benefits are intended to protect workers who cannot work due to a mental or physical condition. There are not intended to address the difficulties of finding a job.
2. “My long-term disability insurance company told me to file for social security disability”
This can be an easy mistake to make, because it is the true: most LTD carriers under an ERISA group benefit plan require those on claim to also file for social security disability. This is because they are able to reclaim some benefits paid out of social security disability benefits. But this is not an answer to the ALJ’s question. She wants to know why you think you cannot work. This answer leave the wrong impression. Are you pursuing social security disability because you truly believe you are disabled and cannot work, or are you simply following the orders of an insurance company? Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company.
3. “My unemployment insurance ran out”
This is a real case killer, because it makes you look like you are just working the system.
4. “I don’t have a car/way to get to work”
Social security disability benefit eligibility has nothing to do with whether you have reliable transportation, or even if your impairment keeps you from driving to work (a driving-related impairment has an impact on the ability to perform a driving jobs such as a truck driver). Now, if you have an impairment that means you can’t drive you have to talk about how that impairment would keep you from working once you are at the job. How you get there is irrelevant.
5. “They eliminated my job/they outsourced it to Mexico,” etc.
Unfortunately, the issue is not whether your job is still available. It is always a problem when the last job ended due to layoff because this usually had nothing to do with your health and impairments. All ALJ will want to carefully explore the specifics of a job that ended in a layoff. For example, sometimes people who are not performing their job due to a disability are lad off rather than fired. But if you say you are seeking disability benefits because the plant closed down you are essentially saying you are able to work. The issue is whether you could perform the job, whether it is in fact in one particular job is not in existence.