Rise in Social Security Denials Bring Law Business

Attorneys representing Social Security disability claimants are experiencing more activity in their offices, e-mail boxes, and on their voicemails during the recession. But whether or not that means more business depends on which lawyers you ask. “There has been an increase in the number of applications due to several factors,” said Patricia McCabe, principal at the Law Offices of Patricia McCabe in Van Nuys. “A number of people are applying because of the change in the economy, as marginalized workers are finding fewer opportunities than during an economic boom.” McCabe represents clients who are either physically or mentally disabled. “More claims equal more denials,” she said. And, for her, more denials equal more clients seeking representation in appealing their claims. In fact, business is up by 20 percent at her firm. However, law advocates for the disabled don’t like to think of their clients as “business.” “These are real people who have serious disabilities, and to help them stay in their homes, or find a home after years of being homeless doesn’t seem like work to me,” said McCabe. “It’s very rewarding.” But the rewards for claimant representatives are limited in terms of financial compensation, because the Social Security Administration allows attorneys to choose between two compensation options. The most commonly chosen option is the fee-agreement process, in which the attorney receive 25 percent of a claimant’s retroactive award up to $6,000 (that number went up from $5,300 on June 22). The other option, called the fee-petition process, allows for a higher fee to be set between the client and the attorney,with SSA’s approval. In both processes, the attorney is paid by the government, but in the petition process the claimant must pay anything over the $6000 cap. According to an official from the National Organization of Social Security Claimant Representatives claims are up for a number of reasons, not the least of which is the recession. “They were expecting an increase in claims because of the aging of the Baby Boomers,” said Ethel Zelenski, director of government of affairs for the organization. “But there have been even more retirement claims than they were expecting, which have added to the surge in disability claims that always come with an economic downturn.” That is in spite of the fact that, as Zelenski believes; many people are unaware that Social Security offers a disability benefit. “It takes a while for them to run into someone who tells them about it,” she said. “It’s not unusual for there to be a big gap between when they stopped working and when they filed.” That’s okay, said Zelenski, as long as the claimant does file within five years of establishing that they have a disability. “A lot of times they try to keep working to the detriment of their health and potentially their claim.” For that and other reasons NOSSCR and other attorneys urge Social Security Disability Insurance claimants to get representation from the outset. About 35 percent of all claims are denied initially, and many do not pursue their claims after that. However, at the first appeals stage,the hearing stage,Zelenski said there is better than a 50 percent chance of approval. Having an attorney who knows the finer points of how the SSA functions may increase those odds, she said. “I recommend that people hire an attorney from the beginning of the filing of a claim,” said lawyer, McCabe. “The process is perceived to be extremely simple when it’s not.” To wit, McCabe points to questions on the claims application such as ‘can you perform household chores (laundry dishes, light cleaning)?’ “Many people mark ‘yes,'” she said. “The questionnaire asks if you can cook, if you can make a list, do household chores, mowing, cooking, etc. Well, the answer might be that they can wash a dish or two, or occasionally vacuum, but the real issue is whether they can reliably, consistently do these things.” McCabe believes it would be more useful to ask if claimants can keep their houses clean on their own, on an ongoing basis. “The honest answers to what seem like harmless questions are then used to deny the claim,” she said. “Yet, they never ask if you can walk up a flight of stairs.” McCabe said she has had applications approved in as few as three or four months, as opposed to two years, which is how long it can take to get a hearing. In fact, waiting times have increased of late. “We’re having fewer hearings,” said Robert Lowenstein, principal at the Law offices of Robert Lowenstein in Sherman Oaks. “That’s because the (Social Secuirty) commissioner has decided to equalize the country.” Because to get a hearing in California had taken only a few months, offices in this state are now hearing backlogged cases from states where the wait was up to three years. “Sure, it’s not fair to Californians, but it’s a national program and it’s their way of saying everyone should be treated equal across the country,” Lowenstein said. “Yet, it can have a devastating effect on those who rely on the system.” In contrast to McCabe, Lowenstein has not seen a huge bump in business because of the economy. “The economy has engendered some more potential cases,” he said. “But there are many applying out there who are just not qualified.” Lowenstein, who is a past president of NOSSCR, is joined by McCabe and Zelenski in saying that young lawyers looking for a practice area from which to launch their careers should know they won’t become super-wealthy attorneys doing social security claimant representation. But, as one of the attorneys put it, the definition of the word success in the post-Wall Street-meltdown world is evolving quickly. “If you’re looking for a job that’s going to make you feel good about winning every time, this is it,” said Zelenski. “And it’s a very tangible form of success.”