Statistically, the majority (over 70%) of all Social Security Disability and SSI claims are denied at the initial application level. Approximately 88% continue to be denied at the Reconsideration level, which is the first level of appeal. FY12 Workload Data-Total.
An attorney can help prepare you case at each of these levels to help improve your chance of winning at each of these levels. An attorney can help you gather the medical record evidence that will be critical in establishing the severity of your condition. An attorney can also help you obtain opinions from your treating medical providers that will be important in establishing your resulting impairments.
However, even with an attorney, most Social Security Disability Insurance (SSDI/SSD) and Supplemental Security Income (SSI) claims must continue on to a hearing before an Administrative Law Judge (ALJ) in order to be approved for disability benefits. It is at ALJ hearing level that having an experienced disability attorney can really help win a claim. While no disability attorney can guarantee that a claimant will be awarded Social Security Disability or SSI benefits, an experienced Social Security lawyer can guarantee that a case will be properly “developed” prior to your hearing date.
Developing a Disability Case
The simple fact of the matter is this: even after scouring the internet and reading up on disability claims, the vast majority of SSDI and SSI claimants will have no idea how to thoroughly and properly prepare a disability claim for a hearing. By comparison, an experienced attorney should have a high level of familiarity with Social Security’s policies, procedures, rules and regulations. Here at the Ortiz Law Firm, Mr. Ortiz has several years of invaluable SSDI and SSI claims experience to lend to his clients’ disability cases. He knows what a judge will be looking for with respect to a particular medical condition, and will know what questions to ask your doctor(s).
Because disability attorneys are paid on contingency (only if you win), they work hard to ensure that an SSDI or SSI claim will have the best chance of winning. These responsibilities include tracking down important medical records and test results, obtaining detailed opinion statements from a claimant’s treating physicians and other medical providers, and applying a thorough understanding of SSA regulations and prior rulings to the entire disability adjudication process.
The Odds of Winning Without Legal Help
Can a claimant who is not represented by an attorney still win an SSD or SSI disability claim on their own at an ALJ hearing? Yes. However, the odds of winning a disability claim before an ALJ are markedly decreased when a claimant does not hire an attorney. (Here’s a breakdown of statistics on win rates of those who hired an attorney versus those claimants who went at it alone.)
You must weigh the risk of going unrepresented to a hearing when your future income and health insurance (Medicare or Medicaid) is literally at stake against the percentage of your back pay that you’ll have to pay an attorney if you win (25%, limited to $6,000 for Social Security cases). Click here to learn more about how disability lawyers are paid.
Although an attorney is never required in an administrative disability claim (an appeal to federal court is the exception), going to a hearing before a judge without the assistance of an experienced disability attorney can result in a lost opportunity to win disability benefits.
Lawyers Can Also Help You Win More Backpay
Even where unrepresented claimants are successful and win their claims on their own, they may not obtain the most favorable “onset date” of disability. This affects how much backpay they will receive from Social Security. The established date of onset of the disability, as decided by the claims representative handling the claim, determines how much a claimant will receive in backpay. Therefore, proving the earliest possible onset is of extreme importance in an SSDI or SSI claim. (Learn more about onset date and backpay.)
Applicants and claimants for Social Security disability benefits often ask me whether they “really” need an attorney to represent them through the application and approval process for benefits. I would never state that you need to hire an attorney because a claimant may go through the entire appeals process without an attorney or other representative.
Success Rate Statistics
I’d like to provide you with some statistics as to the relative success rates of those who go unrepresented before the Social Security Administration.
These statistics are taken from the following article: Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 FORDHAM URB. L. J.37 (2010).
Engler cites at least three studies which reported higher success rates for represented claimants than unrepresented claimants. As set forth in greater detail below, Herbert Kritzer reported success rates approximately 15-30% higher for represented claimants, the Maryland Action Plan reported a 24% gap in success rates, and William Popkin reported a 23% gap in success rates. Engler, a law school professor, concludes that these studies “provide consistent data confirming that represented claimants fare far better than unrepresented ones in their social security disability appeals.” (Engler at 59) (emphasis added).
Engler first cites the work of Herbert M. Kritzer, who studied data from the state of Wisconsin from the mid-1970s to the mid-1990s and wrote an article entitled LEGAL ADVOCACY: LAWYERS AND NONLAWYERS AT WORK 111-20 (1998). (Engler, p. 59, n. 90). Kritzer found that claimants represented by an attorney were successful in 60-70% of their appeals, while unrepresented claimants were successful in 30-55% of their appeals. Because the higher rates in each category typically occurred in the same year, the gap in the represented/unrepresented success rate ranged from 15% to 30% each year. (Engler at 59, n. 90, citing Kritzer at 117 chart). “Kritzer also reported data regarding the success rates for claimants appearing with nonattorney representatives. For each year reported, claimants represented by nonattorneys fared far better than unrepresented ones, but slightly poorer than those represented by attorneys.” (Engler at 59, n. 90).
Engler further notes that Kritzer reported on another study from the 1970s, the Boyd Report, which found that appellants represented by attorneys were successful in 78.4% of the cases, appellants represented by nonlawyer advocates or nonattorney representatives were successful in 51.5% of cases, while unrepresented appellants succeeded in only 28.3% of the cases. (Engler at 59 and 59 n.93).
Engler further cites to a publication by the Advisory Council of the Maryland Legal Services Corp. entitled “Action Plan for Legal Services to Maryland’s Poor” (Jan. 1988) (unpublished report, on file with the University of Baltimore Law Library) [hereinafter “Maryland Action Plan”]. The Maryland Action Plan discusses data from the 1980s and reported a success rate of 60% for represented claimants, and only 36% for unrepresented ones. (Engler at 59, n. 91).
Finally, Engler cites a third study by William D. Popkin entitled “The Effect of Representation in Nonadversary Proceedings—A Study of Three Disability Programs”, 62 CORNELL L. REV. 989, 1024 tbl.1A (1977) (discussing data from the 1970s). (Engler at 59, n. 92). Popkin’s data from the 1970s showed a success rate of 71% for represented claimants and only 48% for unrepresented ones. Id.