Paul McChesney (Admin)
Post Number: 914
|Posted on Monday, November 22, 2004 - 6:32 am: |
Joyce: That's a lot of questions! You are in a critical spot. I will address each question, and answer as many as I can.
Q. If I do appeal what will that do to the past benefits that I am to receive for the closed period?
The Appeals Council can sustain the ALJ decision, rule that you
continue to be disabled, or rule that you were never disabled and ask
for the money back. This means that an appeal is dangerous, and a
failure to appeal is dangerous; I think you are at the spot where you
need to sit down with someone who is very smart and very experienced.
Be sure its someone who handles a lot of appeals to the Appeals
Council! A lot of lawyers stop at the hearing.
Q. Since I am
still unable to work should I try a trial work period and then that
would show that my disability has not ended?
A. I often
advise clients to try to work, but of course not if there are health
risks. Whether or not you should do it could only be answered after
careful study of your record.
Q. Do I file a new case since the period of the closed period ended 6 months before the decision?
A. If you are disabled and do not appeal, and maybe if you do, you probably should file a new claim, also.
I need the money now since I am a single parent facing foreclosure on
my home, but I am still not able to work. Where do I go from here to
receive income now, yet still be able to receive for the future months
until I am able, if ever to work again.
A. Like almost
everybody who is being denied in these cases, you are in an incredibly
tough spot. Some have resources outside the Social Security system. If
you do not, of course you are in trouble, with 9 months to an Appeals
Council decision, minimum, and tough odds there, and a probable remand
for another hearing many months away.
Q. If I appeal and I
hire a lawyer now and then I receive a complete favorable decision will
the lawyer receive compensation from my past benefits from the date of
the partial favorable decision or from the very beginning?
A. You and the lawyer could agree to either.
I am scheduled to meet with a lawyer to make my decision, but
unfortunately not all lawyers are totally out for my best interests,
but instead their fees.
A. As to whether any particular
lawyer is totally out for your best interests, I am going to try to
give you an answer. I might be wrong, but I think I can answer in such
a way that, if you study the answer, without asking for more
information anywhere you can see that I must be right:
talk about whether the lawyer is out for your best interests, and then
competency, how much he might know about winning your case, and then
As to whether a lawyer is or is not totally out for
your best interests, I would suggest that this is not as big a concern
in a Social Security case as it would be in non-contingency matters: I
would say that you could probably get a pretty good idea of the
tendencies of 100 random lawyers by considering 100 random people you
know. Maybe 100 lawyers will be a little better since the bar will yank
the license of lawyers who get arrested or do other clearly bad things;
maybe a little worse if you hang out with high class people. Still, out
of the 100, there will be a fair number of really good folks, a few
really bad ones, and some in the middle. Moral: If you check around
hard enough, you can probably find a lawyer who will be put your
interests first; and, if you are careless or unlucky you can stumble
across one who will not. There are two other pressures that tend to
persuade all of these 100 lawyers to put your interests first: one is
to protect their reputation, which is the main way lawyers who don't
advertise heavily get business, and another is the contingency nature
of the Social Security fee: Even if you stumble across a lawyer who
puts getting a fee for himself ahead of every other concern, the fact
remains that he is not going to get a penny of it unless he wins your
case. Under that arrangement, if the lawyer puts your interests first,
he will work hard trying to win your case; and if he puts his interests
first, he will still work hard trying to win your case. So, what you
really have to worry about is competency and cost.
competency, you have to be fairly smart to get through law school. If
you pick one who has been doing a lot of Social Security, he will
certainly know how to give you a better chance of winning your case.
If, again, you are careful, you can probably find a pretty good and
experienced lawyer. Go to my page about Finding a good lawyer.
the worst, you will probably find a lawyer who is at least moderately
competent and somewhat concerned, and thus increase your chances of
winning your case. If you are careful, you will probably do better than
As to cost, you have to decide whether it is worth it
to guarantee that your back check is less, but to increase the chance
of getting anything at all, by hiring a lawyer. For most folks,
avoiding the catastrophe which you have just suffered is more important
than losing 25% of the back time, and so they hire a lawyer to increase
their odds of winning. A compromise approach is to try once yourself,
and if you are turned down, hire an attorney.
question, which should not get tangled up in your decisionmaking
process is whether it is fair to have to get a lawyer. The answer to
that question is, "of course not." Life is profoundly unfair in many
ways, and if it were fair there would be no lawyers; look how many