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 email@example.com.
Reprinted with permission from the November 25, 2013 edition of The Legal Intelligencer © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.