Some thoughts on starting a Social Security practice

I’ve been fielding some questions on Reddit lately about starting an SSDI practice, and I’ve been asked to share the content.  Unfortunately I can’t copy-paste without doxxing my main Reddit handle, so I’ll have to start from scratch here.  I now present my super abridged guide on how to get into Social Security advocacy, assuming that you are already a licensed attorney in solo practice.

How much can I make on SSDI cases?

SSDI claims are on a contingency fee basis, similar to personal injury, but frankly not nearly as lucrative.  The fees are set by law at 25% of the retroactive award, with a cap of $6000 that applies to claims won at or before the initial hearing.  The government handles withholding the fee from your client’s award, so you don’t have to worry about collections, but the government charges a service charge ($93 if you get the fee cap) for the service and there’s no way around the charge.

How many cases can I expect to win?

This is a really tough question.  Right now the “grant rate” nationwide is only about 45% according to disabilityjudges.com, a site that aggregates freely available data the SSA publishes.  But your mileage will vary based on what hearing offices and judges you appear in front of, as well as of course the quality and nature of your clients’ cases.  I am not aware of any analysis that has been done breaking down grant rates by case type or condition, nor do I think the data for such an analysis is available at all.  Generally, you are more likely to win with claimants over age 50 than with younger claimants; you are more likely to win with a physical impairment than a mental impairment; and you are probably more likely to win an SSD claim than an SSI claim.  If you are screening your clients for the merits of their cases, then your win rate will go up, but keep in mind that turning clients away has some downsides to it.  On the other hand there are some major downsides to not screening, such as wasting time and money on cases you won’t get paid for.

Over the years my personal win rate has been as high as over 90% and as low as under 50% in any given year.  Grant rates have come down substantially nationally in the eight years I’ve been doing it, though, and those high numbers were with firms that strictly screened cases for merit.  The 50% figure comes from a firm that wasn’t allowing me to screen cases at all.  If I counted cases I withdrew from against my win rate, it would dip below 50% in probably several years, but I haven’t run the numbers that way.  My win rate is down since going solo as I haven’t had the luxury of saying no to potential clients; I won’t have that until I have enough work to keep me busy full-time.  At the starting stage, you have to accept that a solid percentage of your clients are going to come in with bad cases, and you’re probably going to have to take the clients you get.  A total novice might have to expect as low as 25% to win.  I plan my financial forecasts and marketing strategy around a conservative 1/3 win rate, which I arrive at by including withdrawals and rejected cases in the overall number.

Sometimes it’s worth taking the tough cases just to roll the dice, but when you do you should be realistic in setting expectations with the client.  I’ve won more than a few cases that I thought were hopeless.  I recently won a case in which the rare “felony onset” rule was in play, and got to pocket half of a $5700 fee as a result.  My gut instinct had been to withdraw, but I stuck with it just for customer service.  Turned out to be the right move.

How do I get cases?

There are a lot of ways to get cases, but I’ve found partnering with other law firms to be the most efficient way to start a practice from scratch.  I do this in a few different ways.  When I first went solo, I was making most of my money doing “per diem” type appearances for large national firms that just needed coverage in my area.  It can be tough to find those gigs, and at first the pay’s not that great, but when I first started I made enough to basically pay my bills that way.  Eventually I connected with a firm that offered a very reasonable fee share – a 50-50 fee split, and they provide a lot of staff assistance as well as marketing and the expenses for obtaining records.  Those gigs are hard to find, but a great way to bootstrap a solo practice until you can get referrals at a more favorable rate.  I created a similar arrangement with a local personal injury firm; they’re covering 100% of marketing and contributing staff time and development expenses, and we split the fee 50-50.  In theory I could have negotiated a better arrangement, but with the way SSA pays out fees the 50-50 split actually simplifies my accounting quite a bit, and there’s some value in that too.

I also picked up a bunch of cases from a local SSDI attorney who folded her practice to take a government job.  Buying or inheriting a client book is always a great way for new solos to get a jump start, but there isn’t an easy way to find those deals.  Mine was the result of years of networking and a good bit of dumb luck.

What expenses do I need to worry about?

The main expense in SSDI is paying for medical records.  If you happen to live in New York, great news, you don’t have to pay fees for the records themselves.  I use a record retrieval service to gather my records, though, and they cost me $20 per record request, which can add up to a few hundred per case.  Before I was paying this expense myself I was pretty willy-nilly in requesting records (at a firm); now I am more strategic in where I invest my development dollars.

Other than that, it’s just basic office overhead.  Personally I run a mostly paperless office.  I pay about $10 monthly for an efax service.  I rent an office for under $500 a month, but for my first two years I worked out of a home office without major issues; I just did a lot of housecalls to meet with clients.  Travel expenses can add up if you’re taking cases out of town.  I spend some money on software that helps me work more efficiently, such as Acrobat Pro which saves me a lot of time reviewing files.  You need a computer, but you don’t necessarily need to indulge in a MacBook Pro like I did.  A scanner is definitely essential, but you can do what I did and find a busted old multifunction machine to inherit from an established attorney who upgraded, or do what I did before that and just rely on a cheap consumer multifunction.  You don’t need a dedicated phone line; you’ve already got a cell phone and besides you should always be available to field calls from potential clients.  Oh, and you need a printer, but see above.  Everything else is a luxury.

What kind of staff do I need?

None.  I don’t have a single full-time employee and I handle about a dozen cases a month, which should be a solid six-figure revenue stream by the time my fee backlog gets caught up.  I pay contractors for various things that I don’t want to do myself, though; as mentioned above, I pay a retrieval service for records, and I’m currently employing an experienced paralegal as a contractor to prepare briefs for me.  These are luxuries, though; I pay people to do work I don’t want to do myself, but I don’t really need to.

How much will I make?

Ahh, the killer question.  That’s a really, really tough question, because there are so many variables.  Theoretically it’s just how many cases you can handle per year, times your win rate, times your average fee, minus your referral costs, minus your overhead, minus any staff expenses, minus any medical or expert fees you pay out.  That’s an awful lot of variables.  My first two years I barely broke $30k; my third year I made $45k; and I’m really hesitant to make predictions for year four but I’m confident that I’ll finally break six figures this year.

How long will it take to get paid?

It takes forever to get paid on these cases.  First off, most of your clients will come to you early in the process and you’ll be waiting upwards of two years to even get to a hearing, unless you find a source of already scheduled cases.  Once you get to the hearing, you might be waiting up to six months for a decision.  Most will come in a month or two; some will come in a week or two; some will drag out.  Once you get the decision, you could get paid a week later, it could be another six months, once in a while it’ll be over a year until you see a check.  Don’t expect to get paid a dime within six months of retaining your first client in the best case scenario.  For some clients, you’ll be waiting two or three years between retaining the client and getting paid.  I’m waiting on decisions right now from some clients I retained in 2015, and I’ve got some from that year who don’t even have hearings scheduled yet.

That’s about all I’m going to say for this initial broad overview.  Read my other posts here and on jamesratchford.com for more information on the nuts and bolts of how Social Security Disability advocacy works; what you need to prove and how to go about it efficiently.  If you have questions, I am available by email at jamesratchfordlaw@gmail.com and by phone.  I also offer a paid consulting service to help you set up your practice and to train attorneys in the basics of SSD advocacy, including the option to observe hearings.  Finally, I have a document library available which I have shared with a few attorneys and firms to help get a practice up and running and to establish a competitive advantage.

Business travel essentials, part one: Packing

The frequent flyer’s handbook part one: The business trip packing list.

One part of my work that I really enjoy is traveling to cover cases all over the country. This is usually a service I perform as a contractor for other attorneys when their clients move to a different area, but I sometimes encounter the same need for my own clients and do it myself. That means I go on a lot of very short business trips, as little as 24 hours, and I fly a lot more than most people, often twice a month or more.

So let me share some tips from a frequent flyer. Note that your needs may be different from mine, but for the attorney on business travel, this should be a helpful guide.

Luggage

Most airlines allow travelers to carry two bags on board the plane, and require additional bags to be checked to the baggage compartment, usually for a fee. Checking baggage is a hassle and a risk, so I try to avoid it except in special circumstances like a long trip or if I’m bringing bulky gear like kayaking or skiing equipment.

Most frequent flyers use rolling luggage as a carry on, and if that’s what you want to do it’s not hard to find good luggage suited for the purpose. However, I have found rolling luggage to come with a lot of downsides, and after years of trial and error I’ve switched to using a backpack instead. Why a backpack? The main reason is that it’s much easier to carry around the airport, especially if you need to run which is inevitable once in a while to make a short connection in a large airport. The next advantage of a backpack is that it more easily fits into the smaller overhead bins common to the smaller airplanes that fly into more remote airports. Finally, since backpacks are less common on planes than rolling luggage, it’s much less likely that someone else will accidentally take your bag.

Now, backpacks vary a lot, and it’s easy to spend a fortune on a good travel backpack such as the GoRuck GR1 or GR2, but I haven’t found that necessary. What’s nice about the GoRucks is that they are shaped like conventional rolling bags, which makes them easy to pack and they hold a lot, but I’ve found that a simple student-type backpack is more than sufficient for most trips. I use a low-end North Face bag that I bought for $30 at a climbing festival. Before that, I was pretty happy with the Eastpack school bag I bought for college in 1999. A large backpack holds more than the largest rolling bag that would fit in the same space, but can be stuffed into a slightly smaller space, so you can freely use a relatively large day pack. I don’t recommend larger “backpacking” backpacks, but they may be acceptable for longer trips.

The second bag should be some variation of a laptop bag. I use a courier bag from REI that provides good storage for a laptop and basic business needs and then some. Check with your preferred airline for recommended dimensions and ideally get something that fits your volume needs but still fits under the seat.  I don’t personally recommend spending a lot on this bag, but to some professionals image matters, so buy whatever you like.

What to bring

Again this is assuming a short overnight business trip of just a day or two.

In the backpack or rolling bag:

  • Change of clothes (base layer) and work shoes
  • Hygiene supplies – some like to rely on what hotels provide, but I prefer my own shower supplies so I bring that in a ziplock bag, along with toothbrush and toothpaste, nail clippers (you never know), a small bottle of mouthwash, and optionally a small “sample” bottle of cologne. Personally I don’t shave, but if you do, bring just a razor; most hotels have shaving cream available for free. Oh, bring deodorant; hotels rarely have any to give you. I get my toothpaste from the hotel front desk periodically; I have never bought a travel tube of toothpaste.
  • Recreational clothing – most trips include at least a few hours of downtime and I prefer not to spend that wearing a suit, so I tend to bring comfortable clothes if I don’t wear them to the airport (see below). I usually bring a bathing suit as there’s usually a hotel at the pool even if it’s not a beach destination, and I’m often traveling from Buffalo in the winter. Bring your own towel if you’re planning a beach trip; you may not be able to use one from the hotel depending on your checkout time.
  • Sandals – flip flops are great to wear in hotel showers and to the pool or beach.
  • Medication – if you are reliant on any kind of medication, I recommend keeping a few days supply in each of your bags.

And that’s it for the backpack, unless you have a special need or desire; there are no set rules here.

The smaller courier/laptop bag

The second bag that shows under the seat in front of you is more critical, and I try to fit as many of my essentials in it as possible.

Your mobile office – for me, this consists of quite a few items:

  • Laptop (in a neoprene sleeve)
  • Laptop power adapter and cord
  • Portable scanner – less essential now that phones can scan but still nice if you expect to receive documents
  • Power cords and adapters for phone and headphones, and for your smart watch if you have one
  • Flash drive (several in my case)
  • Any adapters you might need (especially if you have one of the newer USB-C laptops)
  • Any paperwork you will need for the trip – best to print it in advance as hotel facilities are unreliable

Other electronics:

  • Bluetooth or wired headphones- these are really essential for longer flights
  • Portable power pack – every frequent traveler should own one of these. You’ll use and rely on your phone more while traveling, and if you use Bluetooth headphones they could die over the course of several flights. If you don’t have one, grab a cheap small one on Amazon, but get one big enough to charge your phone a few times.
  • Car charger – I use a dual USB lighter jack adapter to plug my phone in to the rental car. It’s less essential now that most cars have a USB port, but you can’t rely on that as you never know when you’ll be stuck in a 2013 Elantra.
  • Aux cord – in case you get stuck in a car without Bluetooth. Most of them at least have an aux port.
  • Vent clip phone holder – to hold your phone in view in the rental car for navigation

Optional electronics:

  • Kindle or tablet- I used to carry these to use in flights, but I don’t anymore. I now consider it dead weight but if it’s worth it to you, bring it.
  • GPS unit – I use my phone, but if you prefer a stand-alone unit it may be worth the space and weight to you.
  • Ezpass – it’s not a bad idea to get a spare to keep in your travel bag. In certain areas this will save you on tolls versus renting one from the rental car agency. On the other hand it really sucks if you forget it in the rental, and the more you have in the car the more you can forget.

I don’t carry these last few items, because for my needs it’s better to keep it simple, but do what works for you and you decide what’s worth carrying.

Clothes: I pack my work clothes in my work bag for a few reasons. They’re less likely to get wrinkled there than in your backpack, and this bag is less likely than the bin bag to get lost or stolen. If you lose a bag, you want to minimize what you need to buy on site, and the last thing you want is to be scrambling for a replacement suit at 8 AM before work.

So my suit pants and dress shirt get folded and go in my courier bag. I put them in a plastic grocery bag for more protection. My tie also goes in this bag. Socks and base layer go in the other bag; in an emergency I can just keep on what I’m already wearing.

Medication: you should have a few days supply of any essential medications in each bag, including “PRN” medications, and OTC essentials like Advil or Aleve and motion sickness pills if that’s your thing. Imodium and antacid are a good idea too.

Secondary ID and form of payment – Losing your wallet on the road is a nightmare, and in some cities and airports business travelers are targeted by pickpockets and muggers. I keep my passport and a backup credit card in my courier bag.

On your person:

Clothing- I dress oddly for transit. I wear my sneakers, comfortable casual pants, a t-shirt, my smartwatch, sunglasses, and my suit jacket.

Why the suit jacket? It’s almost impossible to stuff it in a bag without wrinkling it, short of using an absurdly bulky and expensive garment bag. Plus it has pockets and comes off easily, so it spares me from having to unload pockets at airport security. Trust me, this will save your time. And it’s a cool look.

In my wallet I have the two most essential “optional” items: my Nexus card for the TSA Precheck security line, and my American Express card.

I can’t sing the praises of TSA Precheck enough. You can buy into it as a stand-alone product for $25 a year if you have an enhanced driver’s license, but you get it for free with a NEXUS or Global Entry card, which is just $50 every five years and also speeds you through the US ground border crossings.

Similarly, I can’t get over American Express for business travel. Which Amex is right for you is a whole other article, but I am not aware of any card that beats them for transaction tracking, fraud protection, travel perks, and loss protection. My favorite feature for business travel is how easy the web site makes it to generate expense reports for client billing. If someone else is paying your bills, there’s no other card that comes close. And if you get one of their premium cards a lot of other perks kick in, like free rental car insurance, life and injury insurance, travel bookings, and of course reward points.

I don’t travel with much cash at all if I can avoid it, but if it makes you feel safer stuff a few 20 dollar bills in a hidden spot in each of your bags. A little cash is nice to enable things like eating at street vendors, but I seldom need it, and for tracking purposes I prefer to spend every dollar of a trip on the Amex anyway. However it’s a great idea to have a few dollars in quarters in your bag for city parking.

And that’s about it. If you use this as your packing list for business travel, you’ll be lean and fast at the airport while having everything you are ever likely to need.

Struggling to get by after receiving benefits

There’s a great article today in the Washington Post exploring in detail the stories of some SSI recipients struggling to get by in rural parts of America. This is a sad truth about our disability benefits system and social safety net in this country: very often the benefits just aren’t enough to get by. 

It’s worth a read, check it out. 

http://www.washingtonpost.com/sf/local/2017/10/06/her-disability-check-was-gone-and-now-the-only-option-left-was-also-one-of-the-worst/ 

How to get Social Security benefits – Part 1, the Initial Application.

Potential clients often ask me what it is that I will do for them, and in a lot of ways the main answer is that I know how to win Social Security benefits, and I take them through the process. It’s true that, if the steps are followed carefully, you may not need help from a lawyer. If you decide to go it on your own, then maybe this will serve as a helpful guide. If you choose to get the help of a lawyer, I hope to help you understand what your lawyer will do.

So here is how to get Social Security Disability benefits.

 

Step 1: Be disabled.

Believe it or not, this is the step that trips up a lot of would-be applicants. It all stems from the legal definition of the term “disabled.”  The term means different things in different contexts, such as the Americans with Disabilities Act or Worker’s Compensation, or even an insurance policy. For Social Security, it is a very narrow definition that most Americans will hopefully never meet. You are disabled if (and only if) due to a medical condition or combination of conditions, you have functional limitations which so seriously impair your daily functioning that you cannot sustain unskilled work at any level of exertion. There are actually a few exceptions to this definition, and a lawyer can explain them, but in general, thats the Social Security “standard of disability.”

 

Step 2: Stop working.

Now really, I could list this as step 1, as that’s where the government puts it in the evaluation process. You can’t collect Social Security disability benefits (or SSI) if you are working full-time or earning more than about $1100 monthly. Even part-time work that exceeds that dollar amount can exclude you from getting benefits, as can volunteer work or an internship that isn’t paid.

Now if either step 1 or step 2 isn’t already the reality of your life, proceed no further down this article. I’ve had people ask me if they should stop working in order to pursue Social Security benefits, and with few exceptions the answer is usually no. Most people will have less money on Social Security benefits than working, even working part time. So if you’re capable of working, you’re probably better off in the work force – or even on unemployment benefits which are often higher than Social Security benefits. Nobody applies for Social Security because it’s an easy way out. You apply because you’re out of options.

 

Step 3: Apply for benefits

There are three ways to apply: by phone with the Social Security Administration, at a local SSA office,or online at SSA.gov. The application requires a lot of information, and it’s good to get that information together before you apply. You’ll be asked questions about:

  • Your basic demographic information including social security number, date and place of birth, address, and phone number
  • Your work history, including the names and addresses of your last five employers
  • Your recent medical treatment, including the names and contact information of every medical provider you’ve seen since becoming disabled

Again, it’s best to have this information handy when you start your application, but if you don’t, it’s a good idea to get the application started as soon as you can even with incomplete information. The most important part of the application is identifying your medical sources, so that the government can gather your medical records.

 

Step 4: Follow up on your application.

Once your application is completed, it’s the government’s responsibility to gather your medical records, and they will also send you and your doctors some questionnaires. It’s important that you complete each of the questionnaires they send you, because if you don’t, they may deny your claim without even looking at the medical evidence. But it’s a good idea to consult an attorney for guidance while completing these questionnaires. Generally, I will help my clients complete the questionnaires so that we know that the answers correctly address your condition and limitations.

The government will usually send you to see their doctor, an appointment called a Consultative Examination. It’s important that you attend this appointment and that you provide that doctor with a complete picture of your symptoms. If you have recent objective reports such as an MRI, it’s a good idea to bring those with you. I provide my clients with an info sheet to prepare them for the CE appointment.

Once you’ve completed the questionnaires and gone to the CE appointment, your application is considered complete, and this is where most people stop – and where some initiative might mean the difference between winning now and having to wait for a hearing.

 

Step 5: Get a medical opinion.

The earlier you can do this, the better. While the rules for evaluating a treating physician’s opinion have recently changed, one upshot of the change is that nurse practitioners and physician assistants are now considered “acceptable sources” for medical opinions. The government is required to consider the professional opinions of your physicians. Now, it’s important to note that an opinion saying “my patient is disabled” isn’t worth much at all, because of the rules. But an opinion stating the physical and mental limitations that stem from your condition, especially if the opinion makes specific references to your medical records, is very helpful. Most competent Social Security attorneys have a library of forms to solicit detailed medical opinions, and if you hire an attorney early in the process getting a medical opinion is one of the things we will do for you. If you don’t have a lawyer, some internet research may help you find a helpful form to get an opinion from your doctor, but keep in mind that there may be more bad information than good on the web, and it’s important to know that you’ve got the right information.

That’s pretty much it for the initial application process. Oh, I forgot the most frustrating part.

 

Step 6: Wait.

Once all the information is in, including the CE report and hopefully your own doctor’s opinion statement, the evaluators at your local Disability Determination Service (DDS) will evaluate your case and make a decision. If they like what they see, they’ll grant your case and you’ll start receiving your benefits soon. Bear in mind, though, that fewer than 30% of initial claims are approved, and you are likely to need to proceed further through this process.

Tune in for my next post for information on the process of getting and winning a hearing with an administrative law judge.

Commentary on the newly proposed revisions to the Social Security regulations

The government has proposed drastic changes to the Social Security law which would have a devastating effect on Social Security claimants.  The proposed regulations and explanatory documents can be found here: http://www.regulations.gov/docket?D=SSA-2012-0035

The rule is presented to look benign enough and even beneficial.  The rule is proposed as elevating non-doctor medical sources, such as social workers, nurse practitioners, and physician assistants, to the same stature in the regulations that is afforded to physicians.  But this is subterfuge.  The wording of the proposed regulation does not elevate anyone, but instead simply drags the opinions of all medical sources, doctor and non-doctor alike, down to the level of worthlessness.  

The key change proposed is to eliminate what the rule drafters refer to as the “controlling weight rule.”  Attorneys and other claimant’s representatives commonly refer to this as the “Treating Physician Rule.”  Codified at 20 CFR § 404.1527 and 416.927, the rule essentially directs that the opinion of a treating physician, if well-supported by objective medical evidence and not contradicted by another treating source, is entitled to “controlling weight” and can essentially dictate the Decision in the claim.  In short, if a treating physician says that your condition imposes limitations which satisfy the criteria of disability, then the government has to adopt those findings and will find you disabled.  This proposed rule change will take away that power from not only doctors but also from all other medical care providers.

The proposed rule eliminates the phrase “controlling weight” altogether.  The revised proposed statute is produced at pages 115 through 119 of the document.  It seems a little sneaky, to me, that they would bury the substance of the change so deep into the document.  But there it is.  I’ve reproduced it in full here:

§ 404 Evaluating opinion evidence.  

This section applies to claims filed (see §404.614) before [EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE DATE OF FINAL RULE], the rules in §404.1520c apply.

(a) Definitions(1) Medical opinions. Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.

(2) Treating source. Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s). We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.

(b) How we consider medical opinions. In determining whether you are disabled, we will always consider the medical opinions in your case record together with the rest of the relevant evidence we receive. See §404.1520b.

(c) How we weigh medical opinions. Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source’s opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source’s opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (ii) of this section, as well as the factors in paragraphs (c)(3) through (6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source’s opinion.

(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source’s medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source’s opinion more weight than we would give it if it were from a nontreating source.

(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source’s medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source’s opinion more weight than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources.

(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.

(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable medical source is familiar with the other information in your case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.

(d) Medical source opinions on issues reserved to the Commissioner. Opinions on some issues, such as the examples that follow, are not medical opinions, as described in paragraph (a)(2) of this section, but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.

(1) Opinions that you are disabled. We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source’s statement that you are disabled. A statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled.

(2) Other opinions on issues reserved to the Commissioner. We use medical sources, including your treating source, to provide evidence, including opinions, on the nature and severity of your impairment(s). Although we consider opinions from medical sources on issues such as whether your impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments in appendix 1 to this subpart, your residual functional capacity (see §§404.1545 and 404.1546), or the application of vocational factors, the final responsibility for deciding these issues is reserved to the Commissioner.

(3) We will not give any special significance to the source of an opinion on issues reserved to the Commissioner described in paragraphs (d)(1) and (d)(2) of this section.

(e) Evidence from our Federal or State agency medical or psychological consultants. The rules in §404.1513a apply except that when an administrative law judge gives controlling weight to a treating source’s medical opinion, the administrative law judge is not required to explain in the decision the weight he or she gave to the prior administrative medical findings in the claim. 

 

Indeed that may look a little confusing and contains a lot of what seems like legalese.  The important part is the complete deletion of the phrase “controlling weight.”  The effect that this will have is to give Administrative Law Judges (ALJs) greater discretion in how to assess and flat out disregard the opinions of your treating providers – whether they be MDs, PhDs, DOs, LCSWs, APRNs, DCs, DPTs, or any other acronym.  All, alike, are disposable under the proposed rule.  

Let’s step beyond the plain-text for a moment to its surroundings.  As supporting documents, the government has posted two reports which both exhibit bias in a specifically anti-claimant direction: a report entitled “Assessing the Efficacy of the Treating Physician Rule,” which focuses on the thesis that the Rule makes it too easy for ALJs to grant benefits and too hard for them to deny them, and a “Petition for Rulemaking” by a law professor who argues, at length, that the program should be revised so as to deny more claimants.  

So it’s crystal clear that the animus here is to deny more claimants, not to allow anyone’s relevant opinion to be heard.  This won’t make it easier for social workers to get their clients the help they need.  All it will do is make it easier for judges to deny claims, no matter how unanimously they are supported by treating care providers.

It is critical that advocates for the disabled comment on the proposed rule and make our voices heard.  But that is not enough.  Comments can, as is proposed for medical opinions, be completely ignored.  So instead, we must reach above the heads of the proponents of this harmful change.  Contact your Congressperson, regardless of their party, and tell them that you don’t want access to Social Security benefits to be chipped away.  Please share a comment on the proposed rule directly as well, but I fear that our voices simply won’t be heeded or even heard – and well-meaning treatment providers, such as the social workers who so far constitute the majority of the commenters, will drown us out without understanding the harm the new rule will do to their patients.  

Some thoughts on the trend in grant rates

It’s become a harsh fact of life for experienced Social Security advocates: the government simply isn’t granting cases like they used to.  The grant rate at the hearing level is down below 50% nationwide according to disabilityjudges.com, which notes that the nationwide average grant rate is down to 44%.  

Most advocates have seen our numbers go down.  When I first started, I took great pride in winning over 90% of my cases in the first year.  That was back in 2009.  Recently, I’ve been doing much better than most advocates at around 70%.  In that statistic, though, I should disclaim that a majority of my recent claims have been insurance referrals, which are “pre screened” by private carriers with criteria similar to the Administration’s.  Most of us are teetering around 50%, a dismal drop from our heyday of nearly perfect records.  

So what do we do now?  

First, we need to do our best for our clients.  It’s no longer acceptable to just gather the medical records and let the judge evaluate the claim on its merits, no matter how strong the claim may seem.  So we need to seek treating medical opinions for each and every case.  We need to write briefs and OTRs when we have a chance to avoid a hearing, or when we need the judge to understand a nuanced argument, or when we need to preserve the record for appeal.  We need to vehemently cross-examine government expert witnesses, and bring our own when we have the opportunity to do so.  

Second, we need to be honest with our clients.  This may mean uncomfortable conversations in cases where we know a claim is not likely to prevail, but if we are serious about our ethical duties, we need to put the client and their best interests first, even ahead of the case.  So it’s important to set a realistic expectation from the start: how likely or unlikely it is for a claim to be granted on the initial application, how long the wait for the hearing will be, and how likely we are to prevail at that hearing. 

I always ask my clients a series of qualifying questions when determining whether to retain a case.  I ask the questions that need to be answered in a hearing, and especially what would keep them from doing sedentary unskilled work.  Sometimes the answer to that question leads to a conclusion that the individual isn’t really a good fit for Social Security benefits, and when that is the case I want my client to have the information to make a prudent decision about their case and their life.  If they aren’t going to qualify, I help them look into vocational rehabilitation services instead.  The last thing that I want to do is encourage someone to abstain from trying to work in favor of a claim that they won’t likely win.  

With denial rates as they are, it’s inevitable that many good cases will be denied at hearings, and many of those will be denied by the Appeals Council and even Federal District Court despite our best efforts.  By setting realistic expectations, we can be better prepared to deal with these losses. 

Musing on purpose

I’ve been a bit down about work lately and I don’t fully feel like I’m making the difference in the world that I want to make.

I’m in Social Security.  I advocate for people seeking benefits from the government.  The work is depressing because the situation is depressing.  Most of my clients wait at least two years for a hearing.  A lot of them look “lazy” and/or “just looking for a handout” from someone else’s perspective.  Some of them really are scammers, trying to pull one over on the government, sometimes trying to pull one over on me; I do my best not to represent those people, but sometimes I’m deceived myself.  Anyway, most of my clients are people with some physical or mental health condition that simply gets in the way of them being able to hold down a full-time job, and in a society without enough jobs to go around anyway, the roll of the disabled is growing larger.

I get pretty down about our society and my role in it.  We as a society (America) have been doing a pretty bad job of taking care of the weak ones; really, the chronically poor, whether they’re disabled or just uneducated and under/unemployed.  We make people jump through all sorts of hoops, and we don’t offer the help until you’re really desperate for it.  But if we (as attorneys and activists) are honest with ourselves, we have to admit it can be hard to stay motivated and inspired.

The reality is that I’m working to fight poverty one person at a time, and I’m only focused on a very narrow slice of the poor population; and the difference that I make to each of them is still fairly small because these benefits aren’t so substantial.  I even sort of feel bad about making a living at this because my pay comes out of the checks of the poor people I’m trying to help, as though they’d be slightly better off if I didn’t have to charge them for my services.  (Of course there’s the back and forth on that issue, if I didn’t get paid I couldn’t do the work and then they’d be much worse off.)

But mostly I’m frustrated because it feels like bailing water out of the Titanic with a bucket.

I occasionally remind myself of the parable of the starfish.  It’s a simple story.  Sometimes a wave can deposit starfish (and other sea creatures) on the sand, and if they dry out before the tide comes in over them, they die.  So a little boy is walking along the beach full of starfish, millions of them, picking them up one at a time and throwing them into the ocean.  He sees an old man, who questions what he’s doing.  “You’ll never make a difference – there are too many for you to ever get through.”  The boy picks up another starfish and tosses it into the ocean.  “I made a difference to that one.”

Sometimes I would rather be a politician or run a massive nonprofit agency making structural changes to fight institutional poverty in this country.  In the starfish metaphor, I wish I could be a wave on the ocean… or at least have a bulldozer.  Instead, I’m a small time attorney helping one person at a time get benefits.  It’s slow, agonizing, heartbreaking work.  I lose a lot and I watch my clients suffer, and some of them are difficult to deal with.  But I periodically look over the list of cases I’ve handled.  I’m fortunate to have lost count, somewhere in the hundreds.  I know there are plenty of much more experienced attorneys whose lists are in the thousands, but I’ve helped hundreds of people attain a marginally better existence.

I’m tempted to go back through the list and pull out a phone number or two, check up on people to maybe feel some hope.  But I’m also worried what will happen if I check up on someone and find out that life isn’t going well- I probably wouldn’t have anything more to offer them.

So I have to plod on.  One hour at a time, one case at a time, one life at a time.

Exciting news

I’m very excited to announce that I’ll be transitioning to an of-counsel role at Ramos & Ramos, and ramping up my roles at Pasternack Tilker, Allsup, and now primarily the office of Lewis Schwartz.

Lewis is quite possibly the foremost solo practitioner in Social Security in Western New York, an absolute pillar of the Social Security bar.  His practice focuses primarily on appeals to Federal Court, where he is one of the most prolific and successful advocates in the Western District.

I’m also back in the business of directly offering per diem hearing and writing services to firms across the country who need coverage for Social Security hearings and appeals.

Why me?

Why go with James for your SSI claim? 

There are more lawyers and more law firms than ever before. 

You are constantly bombarded with ads on TV, radio, and billboards. So by now you know pretty well what they all say. What aren’t they saying?

At many large firms, your case may not be much more than a number or a statistic in a computer. You might not even get to speak to an actual attorney before your day in court, and he may or may not have seen your file before then. It’s very easy to make a claim in an ad, and it’s just as easy to hire a squadron of attorneys and paralegals to treat each case like a disposable product in a factory. 

Many large firms can claim a lot about their numbers. Many of those numbers are true. Maybe they really have represented more claimants than anyone else. Maybe they are the biggest, with the most lawyers and the most efficient process. But is that the approach that is right for your case?

One thing that I’ll admit right up front: I haven’t handled as many cases as any firm with a one-digit phone number or a national ad campaign. Instead, I remember the faces and stories of each of the hundreds of clients that I’ve helped resolve their legal needs. 

I don’t have a close working relationship with the internal lawyers at the big insurance companies. What I have is the time and dedication to form meaningful connections with my clients, and the skill and finesse to defuse tough negotiations and advocate on your behalf no matter who we must face. 

I don’t have a six or seven figure advertising budget. What I do have is a personal stake in making sure that each and every client leaves happy enough to enthusiastically recommend my services to their friends and relatives. 

I don’t have thousands of clients fighting for my time or hundreds of customer service workers to read you my computer system. What I have is a personal relationship with each client, and what you have is direct access to your attorney. 

I know that each case is different in subtle ways. You aren’t just a number or a pattern. Your case and your life matter to me. 

My promise to you:

I will treat you with respect and dignity throughout the process. 

I will keep you informed about what’s going on with your case. 

I will do my best to expedite your claim. 

I will be up front and honest with you about your claim, setting clear and realistic expectations. 

I will work on your case personally. 

If you have questions about whether a solo practitioner is the right representative for your case, feel free to ask and I promise that I will give you the straight answer that you deserve. 

Flat rate legal services

Paying for legal services is scary.

Lawyers can be expensive.  Legal fees can be unpredictable.  Expenses can quickly mount.  Up-front retainers can be hard to gather.

Flat rate services are a new and rapidly trending option in paying for legal services, that can control the magnitude and predictability of costs.

The way it works is simple.  The lawyer and client discuss the scope of the legal services that are needed.  The lawyer presents a price, typically from a prearranged “menu” of services, and the client pays the fixed price up front.  The lawyer remains on the case until the task is done, and if other tasks are required, the process can start over.

For many types of matters, this will save clients money, but more importantly, it removes the uncertainty and confusion of the process.  With a flat rate service, you know what you’re spending before you commit to a certain practice, and before you part with a dime.  No large retainers.  No waiting for a bill.  Just a lawyer who works for you to do what you have paid him or her to do.

There are some potential downsides to flat-fee billing, of course.  Everything has a downside.  Sometimes a flat fee can have a higher cost than the billable hours method.  Sometimes a flat fee may not cover everything that a client ultimately decides that they want.  And there are sometimes matters that are too inherently complicated for a flat fee to make sense.  Flat fees also require that fees be paid up front, which may not be feasible for some clients and some types of matters.  But for those cases, many flat-fee firms still offer contingency fees when they are needed.  For most clients, flat fees will simplify the process and take away the stress and worry of not knowing what the bill will say.

I’ve decided to start offering a menu of flat-rate legal services for all of the types of matter in which I engage.  Social Security and Worker’s Compensation will remain on contingency fee only, as the fee structures for those types of cases are prescribed by law, which doesn’t allow lawyers to engage in alternative fee structures.  But for business contracts, letters, research tasks, traffic and misdemeanor defense, and administrative filings, flat rates will be available immediately.