A Little Pro Bono Goes a Long Way for Disabled Clients – Niki Ludt

By | January 28, 2014
November 25, 2013 edition of The Legal Intelligencer
A Little Pro Bono Goes a Long Way for Disabled Clients By. Niki Ludt

For a growing segment of the population unable to work due to a disability, the Social Security
disability programs provide a vital, and frequently an exclusive, source of income. Being able to
establish eligibility for Social Security disability benefits became even more significant Aug. 1,
2012, when the Pennsylvania General Assembly terminated the cash portion of welfare benefits,
known as general assistance. Roughly 35,000 Philadelphians lost the benefit that had been their
sole source of income. A large portion of these individuals, estimated at more than 90 percent,
suffer from some type of disability. Many meet the criteria for being found disabled under the
Social Security disability standards. But most of these low-income clients urgently need legal
assistance to help them apply for benefits. With a short investment of time, an advocate can help
a vulnerable, disabled client rise from existing in desperate poverty to obtaining a stable monthly
income.
Recently, the Social Security disability program was portrayed negatively when the television
program “60 Minutes” aired a segment giving voice to a U.S. senator hostile to the program and
implying that it is easy to obtain Social Security disability benefits. In fact, the opposite is true:
To establish eligibility for Social Security disability benefits, an applicant must meet very high
and stringent standards. He or she must demonstrate a medically determinable physical or mental
impairment that is expected to last a year or longer, and an inability to perform substantial,
gainful activity. The Social Security Administration maintains a list of impairments that are
considered disabling under federal regulations. A claimant who fails to provide sufficient
evidence of a disability, including sufficient medical evidence, will be denied disability benefits.
While claimants can, and usually do, apply for Social Security disability benefits without the
assistance of counsel, our experience at Face to Face Legal Center has shown that claimants are
dramatically more successful when they are represented by counsel. According to the Social
Security Administration’s 2012 “Outcomes of Applications for Disability Benefits,” only 29
percent of claimants were granted benefits on initial application. In contrast, over the past five
years, claimants who have used the services of our legal clinic have realized a 75 percent success
rate upon initial application.
For several reasons, claimants applying on their own are at a distinct disadvantage compared
with those assisted by counsel. First, many claimants have low literacy skill, with attendant
trouble comprehending and accurately answering questionnaires about their daily functions and
work history. Second, claimants lack the organizational skill and diligence of a lawyer. Some are
uncomfortable dealing with government representatives, and are easily intimidated. Third, poor
clients often are transient and thus unable to receive and respond to mail in a timely manner;
many lack reliable telephone service. These circumstances often make it virtually certain that an
applicant’s claim will be denied.
A few examples serve to illustrate the types of things that are needed or helpful to support a
claim, and that a pro se claimant may not understand or do:
• Many claimants have the potential of being found disabled but are not currently receiving
medical or mental health treatment because they do not have medical insurance and cannot
afford to pay a doctor. They often mistakenly believe that their lack of medical insurance will be
understood as a valid reason for not currently being in treatment. At Face to Face, we refer such
clients to our social worker for help in obtaining medical assistance in order to document their
disabilities. We refrain from starting the application process until they are insured and
undergoing treatment.
• When providing information in the application, known as the adult disability report, claimants
lack a lawyer’s advocacy skill and may fail to present the facts supporting their case in a
comprehensive and persuasive light. Unrepresented claimants often have trouble completing the
report online or are unprepared to be interviewed by a Social Security claims representative. At
Face to Face, we conduct a comprehensive disability intake, carefully interviewing clients to
obtain the names of all their treating sources and detailed information on the medications they
take. Our volunteers then complete the adult disability report online and thoroughly provide all
the requested information, employing their advocacy skills to paint a full picture of the client’s
functional deficits.
• A claimant with a visible disability or noticeable mental health impairment may not realize the
importance of scheduling an in-person interview at the Social Security Administration rather
than having a phone interview. The claims representative makes notes on his or her observations
and impressions of the claimant that become part of the permanent file. In a recent blog on
Reddit, an adjudicator admitted that he and his colleagues approach every case with skepticism
and that they develop cases based on a “gut” feeling and work from there.
• Unlike an advocate, a claimant likely would not realize the need to intercede with his or her
medical providers to ensure that all records are sent to the claims adjudicator who is responsible
for collecting medical evidence. Some adjudicators aren’t diligent in procuring records, or may
not order older records, which often contain valuable objective findings. Likewise, a claimant
may not know to approach his or her doctors to ask if they would support a finding of disability.
• The agency’s disability doctors may need additional medical or mental health evidence to
evaluate a claim, in which case they request that the adjudicator schedule a consultative
examination of the claimant. In contrast to a lawyer, a claimant would be unlikely to confirm
with the adjudicator that the claimant’s medical records have been provided to the doctor before
the exam. Claimants are likewise unaware that the consultative exam should last at least 20-30
minutes. In our clinic, we instruct clients to time the exam, because we discovered that many
exams last less than 10 minutes; one exam was performed in only six minutes. This vital
information has been useful in discrediting a doctor’s adverse medical opinion. In addition, a
lawyer can make sure that the claimant client does not fail to attend the consultative examination,
since failure to attend would be fatal to the claim.
It takes approximately six months for a disability claim to be decided after an application is
submitted. This may seem like an eternity for disabled claimants with no income, but if they are
successful, they will have been saved an additional 12-to-15-month wait for benefits following a
successful appeal hearing. Assisting clients to apply for disability not only increases their
chances of obtaining benefits sooner, but is much less labor-intensive for the pro bono attorney
and requires less knowledge of disability law than is required to represent someone at a Social
Security disability hearing. If you are interested in helping a disabled person apply for disability
benefits, contact Face to Face Legal Center.
Niki Ludt, a 1983 graduate of Temple University Law School, is the director of Face to Face
Legal Center and has been involved with the legal clinic for 21 years. She can be contacted at
vludt@facetofacegermantown.org.
Reprinted with permission from the November 25, 2013 edition of The Legal Intelligencer © 2013 ALM
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