Because disability lawyers get paid only if they win, disability attorneys sometimes decline to represent a person if they believe there is little chance of success of winning or if they determine that if the disability applicant is approved, there will be very little backpay or retroactive benefits from which to be paid. (Disability lawyers are paid directly from the Social Security Administration (SSA) out of any backpay or retroactive benefits the disability claimant (applicant) receives.)
Disability lawyers and their assistants who screen cases for them will assess a case before they agree to represent a disability applicant, and if they notice weaknesses in a case, they might reject it.
How a Disability Lawyer Spots a Weak Case
Sometimes there are red flags that indicate to the attorney that there is either a weakness in the claimant’s case or some other issue that makes winning the case unlikely or overly burdensome. Here are some examples, broken down into categories.
Weak argument for medical eligibility. A disability attorney may feel that your case will be a difficult one to win if any of the following are present:
- lack of supportive objective medical evidence despite appropriate diagnostic tests
- lack of consistent medical treatment
- refusal by medical providers to provide supportive statements
- the claimant is under the age of 45
- the claimant is collecting unemployment benefits
- statement by claimant that other disability attorneys wouldn’t take the case, or
- the claimant is ineligible for SSI or SSDI.
Concerns about disability applicant. An attorney may decline to take a case if the attorney feels the client may be troublesome or is not trustworthy, which may be evident if any of the following factors are present:
- inconsistent statements from the applicant, or dishonesty
- evidence that claimant is a malingerer (faking an illness or pretending the impairment is worse than it is)
- failure to follow treatment prescribed by doctor
- applicant has done doctor shopping (usually done to obtain pain medication)
- evidence of untreated alcohol or substance abuse (unless claimant agrees to immediate treatment)
- claimant was “fired” by another disability attorney
- claimant expresses unrealistic expectations, or
- combative or disrespectful behavior of claimant towards the attorney or staff.
- a claimant “fired” his or her original disability attorney
- lack of sufficient time to prepare for a hearing (generally when the claimant calls last minute), or
- potential for low-paying or non-paying SSI case (because the disability back payments would be low).
Some, but not all, of these potential issues can be overcome if you discuss them openly with the attorney. Some of the more common red flags are discussed in more detail below.
Lack of Medical Evidence
If there are legitimate reasons that a claimant has not had consistent medical treatment, an attorney could still decide to take the case. This usually happens when a claimant has not had access to health insurance or is ineligible for medical assistance. If the claimant has older supportive medical records that indicate a disability, an attorney may decide to take the case and help the claimant get further testing either by requesting a consultative examination by the SSA or by helping the claimant find affordable community healthcare. If you haven't seen a doctor recently, be sure to explain to the attorney the reason for any gaps in your medical records and express a willingness to do what is necessary to get the treatment you need. For more information, see our article on developing medical evidence when you haven't seen a doctor.
If an attorney feels the claimant has at any time been dishonest either with the attorney, a staff member, or a medical provider, it is highly unlikely that the attorney will represent the client. This is especially true if any medical records suggest the claimant is exaggerating symptoms. For this reason, it is imperative that you are you are straightforward and honest with all medical providers and you are forthright with a potential attorney about embarrassing or unsupportive facts in your case.
Claimant Is Under the Age of 45
It is more difficult for a claimant to win approval if he or she is under the age of 45 unless it can be proved that the claimant has a serious illness such as advanced cancer or ALS, or the claimant cannot do even sedentary work. If you are a younger claimant, make sure you have as much supportive medical evidence as possible when you first speak to an attorney. This enables the attorney to better review your case and hopefully alleviate any concerns regarding your age. (For more information, see our article on how your age impacts your disability case).
Alcohol and Substance Abuse
If you abuse alcohol or illegal substances, you need to tell the prospective attorney. This is especially important if you are not receiving treatment. An attorney will generally take a claim despite substance abuse problems if the claimant is getting help. The claimant must also be able to provide a statement from his or her healthcare provider that says the disability would exist even if he or she were clean and sober. For more information, see our article on how drug and alcohol use affects disability.
Lack of Preparation Time
Even if a case appears good on paper, an attorney will usually decline to take a case if the hearing is scheduled for less than a month away from the date the claimant calls the attorney. This is because there is not enough time for the attorney to get all the evidence needed to argue the case and to properly prepare for the hearing. Also, the SSA is generally unwilling to reschedule hearings unless the claimant can demonstrate a good reason to do so (such as illness.) Therefore, you should contact an attorney as soon as you receive your denial letter.
The disability process is stressful and attorneys well understand this. However, attorneys will not tolerate abusive or disrespectful language directed at themselves or their staff no matter how good the case. Therefore, if you have behaved inappropriately towards an attorney or firm staff member, you should apologize directly to the attorney or staff member and provide a written letter of apology. Remember, though, that an attorney can cease to represent you if there is a relapse in your behavior.
Issues with Previous Attorneys
Claimants who have been represented in the past on a disability case may have difficulty finding a new attorney. This is partly due to professional courtesy. It is also because clients who have had issues with a previous firm are more likely to have the same issues even with a new attorney. In addition, the attorney would have to file a special fee petition with Social Security to divide the fee with the former attorney. If you were previously represented you must tell the prospective attorney immediately and explain the reason the relationship ended. Do not speak badly about your previous attorney.
Financial or Legal Ineligibility for SSDI or SSI
Unfortunately, not everyone is eligible for SSI or SSDI even though they are clearly disabled. This usually happens when a person doesn’t have enough work credits to qualify for SSDI but has too much income or other assets to qualify for SSI. For more information see our articles on SSI eligibility and SSDI eligibility.
A disability attorney only gets paid if he or she wins, and the fee is 25%, up to $6,000, of any retroactive or back-payments the claimant is entitled to. A person who is approved for SSI can only receive back-payments from the date he or she was approved to one month after the application was filed, even if the SSA determined the applicant became disabled long before the application date. Therefore, fees in SSI cases are usually small and, occasionally, an attorney is awarded no fees at all for an SSI case. In addition, monthly payments for SSI are usually smaller than payments for SSDI, so the percentage the attorney gets is smaller. Therefore, if the attorney reviews an SSI claim and feels it is unlikely the claimant will be found disabled prior to the application date, the attorney may choose not to represent the client.
Collecting Unemployment Benefits
Many disability lawyers recommend against collecting unemployment benefits when applying for disability benefits, but in certain situations, it may be not work against you (either in hiring a lawyer or getting disability benefits). For more information, see our article on unemployment and disability.
What Do I Do if I Can't Get a Disability Attorney?
If an attorney doesn't think you have a case, or declines to take your case for other reasons, it is important that you ask the attorney to explain why he or she won't represent you. This will allow you to address any issues so that you can strengthen your case, either to convince the attorney to take your case or have a stronger case for the next attorney you interview. To contact other disability attorneys in your area, you can use our disability attorney locator tool.
You can also learn how to represent yourself at a disability hearing by reading Nolo's Guide to Social Security Disability, by David Morton, M.D., a former medical consultant for Social Security disability.