Saturday, November 22, 2008

My Lawyer Didn't Say Anything at My Disability Hearing

I don't reference posts on other blogs nearly enough, but this one really stuck in my mind. It's from Colorado Disability Attorney Tom Stasiuk's blog (great source of information--look for him on the blogroll page). In the post, he talks about the fact that many claimant's are surprised that, when they go to a hearing their lawyer may do relatively little speaking.

He posts three example quotes to illustrate, but the one that really kills me (because I've heard it so many times, believe me) is "I went to my hearing and my lawyer sat there like a bump on a log". Actually, I haven't heard that one specifically, but I have heard, quite a number of times something similar to "My lawyer hardly said anything". And sometimes that statement is followed up with...why should I even pay him?

Ok, as Stasiuk points out, when you go to a disability hearing with a disability lawyer, you're not paying someone to orate and wax eloquently about your case. You're actually paying someone to do the legwork and heavy lifting on your case, i.e. preparing for your disability hearing.

That means reviewing your file, obtaining medical record updates, getting a grasp of your current residual functional capacity, hopefully getting a solid, detailed and objective medical source statement (this can be done on an RFC form) from a treating physician, making sure that the hearing office gets copies of everything obtained, reviewing your work history, and being able to present a rationale as to why you are no longer able to perform your past work and cannot perform other work.

And, in addition to pre-hearing preparation, an attorney is also there to speak for you in the event that the administrative law judge has chosen to have an expert present (possibly a medical expert and/or a vocational expert). Of course, it goes without saying that very, very, very, very few unrepresented claimants would have any idea of how to respond to a hypotethical scenario brought into the discussion, whereas an attorney could do this and entertain their own hypotheticals.

However, back to the original point of this post: when claimants make the statement that their attorney didn't say anything at their hearing and they are forced to wonder what has been done on their behalf, I have to conclude, in most cases, this is because they don't understand what hearing preparation is, and what the nature of the disability hearing really is (which is purely understandable, and logical).

There are cases, of course, in which by the time the claimant and the lawyer arrive at the hearing, the judge has already, for the most part, based on the record, decided to pay the case. But this is often a result of information gathered by the attorney and submitted to the judge. And there are other situations in which the ALJ (administrative law judge) may decide to award an on-the-record decision (meaning no hearing and a fully favorable decision, possibly due to an amended onset previously agreed to). And if that's the case, it may be due to the fact that the case should clearly never have been denied by the state agency in the first place, or it may be due to the fact that the attorney sent a request to the hearing office for on-the-record review along with compelling medical evidence.

Btw, for those who don't know, attorneys are paid 1/4 of a claimant's backpay, currently up to a maximum of $5300.00, meaning that if your case is not won, there is no fee, though you may still have to pay out-of-pocket expenses such as the cost of obtaining medical records.

Here's the link to Tom Stasiuk's post on this subject:

If I have a Lawyer, Why Am I Doing All the Talking?

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Other Posts

Should you File Your SSDI Disability Appeal Online?
Appeal - Disability Determination
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Getting a Social Security Disability Appeal submitted on time
Filing a Social Security Disability or SSI appeal online

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