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Should I Hire A Security Disability Attorney?

Should I Hire A Security Disability Attorney?

Many people make the mistake of pursuing their Social Security Disability or SSI claim without the advice and representation of a lawyer.  Statistically, those who are represented by lawyers are significantly more likely to be granted benefits than those who choose to go through the process alone.  There are many reasons why representation is beneficial. In this article, I will go through a few of them and attempt to clarify why everyone should seek representation in claims for disability benefits.

DISABILITY IS A COMPLEX QUESTION OF LAW, NOT MEDICINE

If you ask most people whether an attorney should be hired for representation in a criminal case or lawsuit, the answer is almost always “yes.”  There is an understanding that civil and criminal defense cases are complicated and require a trained eye.  It is common for those applying for Social Security Disability to believe the decision as to their disability is a medical decision because their condition is medically based.  This belief is WRONG.

Social Security Disability cases are intricate and contain more legal entanglements than their legal counterparts. Disability determinations are not only controlled by statutory law (Regulations), but also influencing authorities known as POMS, SSR’s, HALLEX, and case law.  Often the law coming from these sources conflict with each other.  Only a lawyer, who is a specialist in the field,  can make sense out of the confusion and guide the claimant to a favorable decision.

JUDGES ARE PEOPLE TOO

While judicial determinations deciding disability find their basis in law, those laws are applied by people.  They are people, like everyone, who have individual personalities and quarks.  Perhaps this is most accurate when a disability case is in front of a judge. Different judges can be more sympathetic to orthopedic conditions, but hardnosed when a case is based on a mental condition.   Across the hall, there could be a judge who is hard on orthopedic ailments, but sympathetic to cases involving diabetes.  It is essential to know what conditions each judge is sensitive to when formulating a case strategy.  Only an attorney who practices in the courts daily can have this kind of insight.

An attorney having a positive relationship with the court is vital to being successful in a disability claim.  If the judge isn’t happy to see the attorney, he is going to view everything the attorney says through a negative lense.  It is much more challenging to persuade a court who views counsel with suspicion and dislike.

An attorney’s knowledge of each judge and the relationship with that court can be the difference between winning and losing a claim for Social Security Disability or SSI benefits.

THE JUDGE IS NOT THE ONLY ONE IN THE COURTROOM

In most cases, the court will appoint experts to assist with the decision-making process by giving testimony under oath.  Usually, these experts come in the form of a vocational expert (expert on job requirements and availability) and/or a medical expert (doctor brought in to examine medical evidence).  A claimant’s attorney will also have the opportunity to examine kindly, or hostility cross-examine, each witness.  The key is to know when to take which approach.

Just as the Judges are human, so are the experts.  A positive relationship can determine how open they are to alternative theories.  If an expert has a dislike for the attorney, that expert may dig into their position without considering an alternative approach to their testimony.

A negative relationship can result in this interaction:

  • Attorney:  Madam expert, I know you testified to “A,” but my client said “B.”  Would you agree that “B” is reasonable?
  • Expert:  Counsel, the evidence supports “A.”

Conversely,  a positive relationship with an expert could have this interaction in the same case:

  • Attorney:  Madam expert, I know you testified to “A,” but my client said “B.”  Would you agree that “B” is reasonable?
  • Expert:   Yes, Counsel, even though I testified to “A,” I would agree that your client’s testimony is reasonable.

These are two very different interactions, which will result in very different outcomes.

There is, however, a time for hostility with experts.  Very often, experts will feel they can take advantage of an attorney the expert may not know well.   Obviously, the longer the attorney has been practicing, the less likely an expert is going to try and take advantage of counsel.    There are times, however, when even the most experienced attorney has to become aggressive with an expert.  At this point, it is crucial to conduct the questioning professionally but in a manner that leaves a lasting impression.

MEDICAL EVIDENCE IS NOT EASY TO READ

Social Security Disability and SSI claims can have thousands of pages of records that must be reviewed carefully.  To the untrained eye, this can be an impossible task.  Medical records frequently contain medical jargon, which is confusing to those who are unfamiliar with proper terminology.    An attorney would do this arduous task for his client seeking disability.  The client has enough to worry about without adding the chore of tearing through medical records.

After reviewing the records, the task becomes applying medical evidence to the law.  The court should not be relied on to do this for the claimant.  The judge is only human and may not be aware of all the rules or may not have thought of a specific theory linking the medical evidence to a particular law.  This is the ultimate benefit of having representation.  An attorney will be able to precisely and coherently cite the evidence and apply it to the law in a manner that is persuasive and clear to the judge.  If done correctly, a claimant will be put in the best possible position to prevail in their claim.

NOTHING TO LOSE

Attorneys in the Social Security Disability field operate on contingency.

The attorney only gets paid if the claimant wins their case and the payment will be a percentage of the retroactive benefits.  If the claimant loses, nothing is owed to counsel for representation.  This means, with an attorney, the claimant is put in the best possible position to win with minimal risk.

Can a Person With Sleep Apnea Get Disability Benefits?

There is not a “listing” for sleep apnea. Listings are criteria for specific medical conditions where, if the requirements are satisfied, the claimant will be automatically be found medically disabled. The listings that might be applicable to sleep apnea concern other medical conditions.  

Social Security writes:

“We evaluate the complications of sleep-related breathing disorders under the listings in the affected body system(s). For example, we evaluate chronic pulmonary hypertension due to any cause under 3.09; chronic heart failure under 4.02; and disturbances in mood, cognition, and behavior under 12.02 or another appropriate mental disorders listing. We will not purchase polysomnography (sleep study).”

While it is possible to “equal” one of the listings described above, it is challenging. All hope, however, is not lost. It is still possible to be found disabled even if the claimant does not meet or equal the requirements of a listing. What is required is an analysis of the adverse effects a claimant’s sleep apnea would have on his or her ability to work.  

Sleep Apnea

The most prevalent symptom of sleep apnea that prevents work is excessive sleepiness. Sleep apnea prevents one from ever becoming fully rested. The breaks in breathing thrust the body into panic and shock while sleeping, causing a claimant to be unable to maintain sleep for prolonged periods or sleep at all. Forms of insomnia are common in those who suffer from sleep apnea. If sleep apnea is causing an employee to fall asleep while working, or not being able to concentrate during work periods, that employee most likely will be unable to work and therefore be disabled.  

Sleep apnea can also be psychologically detrimental. Depression and even forms of psychosis aren’t uncommon. The brain needs sleep as much as the body. When it doesn’t get the required rest and fuel from sleep, the mind will start to break down. Depression can result in such a feeling of hopelessness and despair that getting out of bed becomes an impossible task. Such everyday activities of daily living (showering, dressing, socializing, shopping) become too much to bear. If sleep apnea has such a substantial negative consequence that a claimant is suffering these symptoms, he or she may qualify for Social Security Disability or SSI.