The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Social Security Disability
By David R. Bryant

You may be entitled to a fee of $5,300.00 if you can get a client back benefits for a Social Security disability award. This brief article will explain the "how to" aspects of moving the process along and not the nuts and bolts of the law. The law is simple. If your client cannot work at any type of job for a year or longer because of bad medical problems, s/he wins. This assumes the client worked at least 5 out of the last 10 years in job that withheld FICA taxes. It also assumes you have a cooperative family doctor or A/P.

Since SSA gives you five bites of the apple, get involved early. Your client calls and asks why the Union Manager/LTD carrier/HR supervisor would suggest he apply for disability benefits from SSA? Because the Union/Carrier/Self Insured has a disability plan that reduces any payments they make by the amount you get from SSA. Since he has been off work for more than 4 months and it looks as if he will be off for at least another 8 or 9 months, initiate a 3 way call to the SSA Gatekeeper [1 800-772-1213]. Follow the instructions to get to a human voice.

My name is Clarence Darrow and I have my client Melvin Belli on the line. We would like to initiate a teleclaim for Disability Insurance Benefits. My client’s Social Security number is 123-45-6789; his Date of Birth is 2/30/50; his Zip Code is 60187. This basic information allows the Teleclaim Service Center (TSC) representative to pull up the full file on your client (Master Benefit Record - MBR). After a few security questions to verify who you say you are, the TSC rep will place you on hold while s/he dials up the local District Office (D/O) in Aurora/Bloomingdale/Elgin/Woodridge/Palos Hills wherever. The TSC Rep will then get the next available dates when someone from the local D/O called a Claims Representative (CR) will call the client at home on a specific date and specific time (give or take an hour), usually about 10 to 14 business days away. The TSC rep will ask a lot of questions of the client. Answer as best possible. Nothing is written in stone at this time and can be changed. Do not ask to go into the DO to file the claim. You can even file a claim over the internet; but a real pain at this point.

Once the appointment is made, send the client 3 forms: (1) Appointment of Representative (SSA-1696); (2) A Fee Agreement (see Ex. A); (3) A medical consent form (Ex. B). "Please sign all forms and return to me. Do NOT fill in blanks or date" on a stickum note usually works rather than a long CY A letter. All this is done by mail and phone. Call the client a day after the appointment with SSA and ask "How did it go?" Be prepared for a surprise or a long winded diatribe. Just listen. The client will think you are interested. Then say, "By the way, I can’t do anything to help you unless I have those forms signed and returned." Once returned to you, send copies to the DO since a precondition to any direct payment of fees to the attorney is the filing of the SSA 1696 and signed Fee Agreement PRIOR to any favorable decision.

If you have recent medicals, send copies to the DO along with the signed forms. SSA looks for OV Notes of AP & TPs; test results; admit and discharge summaries; consults; [NOT bills, nurse’s notes, daily chartings; medication intake]. Just the good stuff from the time about a year before the client left work to the current date. The AP cover letter could read:

Based on my review of [Client’s] medical records as his AP, it is my considered medical opinion that [Client] will not be able to return to his past work nor any type of sustained work on a 9 to 5, 5 days a week job for the next [ ] months. At that time, I will review his healing process and make an assessment of his ability to attempt a return to work and under what restrictions"

This type of letter, if justified, can be very helpful so long as backed up by the records.

SSA will make a written decision within 60 to 90 days of submission of all the paperwork, if all goes well. Original to client. Copy to you. But docket 100 days to call client since occasionally SSA forgets to mail the attorney a copy of the decision.

Assume the client is denied. The next "bite" is called "Reconsideration". SSA has the forms on their website, including the HIP AA compliant medical consent forms. You can download and print:

SSA 561 Request for Re-consideration: In the space allowing for reasons for the appeal, just insert "I CANNOT WORK DUE TO SEVERE MEDICAL PROBLEMS". No more is needed. The rest of the form is easy.

SSA 344 –F6 is an update form to alert SSA to any new medical developments.

SSA 827 is the SSA medical consent form and the client should sign at least 3 copies.

Send the whole package of signed forms to the local DO no later than 65 days after the date of the denial letter. SSA is a bear on the time limits for appeals.

Assume denial again since the same people who denied the first time will probably do the same on the second "bite". The third "munch’ of the apple is called a "Hearing" before an Administrative Law Judge ("ALJ’’). Complete form HA-501. Make sure you check the Box 6 "YES" and insert on the lines below "to be provided at hearing". Same for Box 7 - check "I wish to appear. . ." Another "update" form (HA 4486) is to be completed by the client. Another set of 3 SSA medical consent forms. Again, these forms are sent to the local DO. Hearings are backed up for DuPage area residents about a year. Most of the ALJs are competent and will render a fair decision. Two Offices of Hearing & Appeals (OHA) serve the DuPage area: Oak Brook Terrace (22d Street) and Orland Park (near LaGr Rd and 159th).

About 60 days after you file the appeal papers, you will get a letter from OHA indicating that the file has arrived at the OHA office. You ‘Should call [OBT - (630) 889-1660 and punch "0"] [OrPk - (708) 675-3301 and punch "0"] and set up a time and date to review/copy the file. Your lawyer skills of analyzing the strength of your client’s case, ability to marshall the evidence and make an outstanding presentation without any opposing counsel - this is your job. Once the Hearing is over and all the evidence in, the ALJ will make a decision in about 60 to 90 days; some sooner, some later. Rarely favorable from the bench yet the ALJs in the DuPage area run about 60% in favor of the client. Again, the original goes to the client and a copy to you.

If denied by the ALJ, call in the troops to handle the last two bites. If allowed, the decision does not become final for 60 days. The SSA has a corresponding right of appeal. Chances are about 50 to 1. Do not spend the fee until you get it. After the appeal time expires, another 30 days goes by before a Notice of Award is mailed out to you, to the client and to the ALJ. This Notice tells the client how much s/he will get in back benefits and monthly benefits, the starting date, the attorney’s fee (less the tax), any Medicare entitlement, any Workers Compensation offset (about 5 pages). Read very carefully since the Award itself is subject to appeal.

If the back benefits to the client AND Family exceed $21,000.00 then you get the full $5,300.00 less a 6.1 % "tax" (processing fee - a whole nother article). If less, you get 25% of the client and family’s back benefits. If they get $16,000.00, you get $4,000.00 (less the tax). All future payments are the sole property of the client. The Act allows for 25% of back benefits or $5,300.00, whichever is the lesser of the two.

A person consistently making over $30K a year before the disability will get anywhere from $900 to $1,500.00 a month. If there is a spouse and minor kids, they divie up 50% of what the client gets. If s/he gets $900.00/month, the spouse and two kids split $450.00. Kids checks go to the parents as representative payees.

A helpful website for the more intricate legal aspects of the practice may be found at run by Peter Young. Several good attorneys in the Midwest handle Social Security matters at all levels of the apple.

David R. Bryant, of LaGrange, is a solo and of counsel to Daley DeBofsky & Bryant in Chicago. Admitted in Illinois after graduating from Northwestern Law School in 1964 and back doored the practice in 1974 having previously worked as a law librarian at Northwestern and Cook County Law Libraries. After a few years in the general practice, he began to focus on Social Security disability law and ancillary issues. Founding chair of the CBA Social Security Law Committee and active in various bar associations, he continues to practice, write and lecture in the area of Social Security law.

DCBA Brief