What Disability Claims Is an Attorney Likely to Reject?

Disability lawyers and advocates who represent applicants for benefits from the Social Security Administration (SSA) are required to work on contingency, meaning they get paid only if you win. The SSA pays attorneys and advocates directly from any backpay you receive after you're approved for benefits. Because attorneys risk working on a case that they'll ultimately receive no payment for, they can decline to represent people who they believe don't have a good chance of winning.

Why Would a Disability Lawyer Reject or Drop My Case?

An attorney will try to identify red flags during the client intake process and may let you know then that they won't be representing you. But sometimes these red flags don't come to light until after you've hired a lawyer, at which point the lawyer might drop your case.

Here are some of the red flags that could keep a lawyer from taking a case.

Weaknesses in the Medical Record

Having a strong medical record is the basis of a successful disability claim. A disability lawyer may feel that your case will be difficult to win if:

• you don't have any objective medical evidence, such as an X-ray, CT scan, or MRI
• you have large gaps in between seeing doctors
• the medical record mentions "malingering" (exaggerating or faking symptoms)
• you haven't been following your doctor's recommendations, or
• your medical provider wrote an opinion that your limitations aren't disabling.

Attorneys can and do take cases where the client has legitimate reasons for a weak medical record, such as not having access to health insurance or being ineligible for medical assistance. If you have older, supportive medical records that indicate a disability, your lawyer can strengthen your case by requesting a consultative examination or helping you find affordable community healthcare.

If you haven't seen a doctor recently, be sure to explain to your potential representative the reason for any gaps in your medical records, and express a willingness to do what's necessary to get the treatment you need. For more information, see our article on developing medical evidence when you haven't seen a doctor.

Concerns About the Disability Applicant

Attorneys can decline to take cases when they feel the client may be troublesome or untrustworthy, which can show in the following ways:

• inconsistent or dishonest statements
• evidence of ongoing alcohol or substance abuse
• combative or disrespectful behavior
• being difficult to contact, and
• being the subject of a disability fraud investigation.

If a law firm feels that a potential client isn't telling them the whole story, they're unlikely to take on the case. Embarrassing or unsupportive facts don't have to sink a disability application, but lawyers generally don't want clients who are actively undermining their own disability case.

Tell a prospective attorney whether you're currently using alcohol or illegal substances, especially if you're not receiving treatment for substance use disorder. Many firms will represent an applicant ("claimant") with a history of substance abuse, as long as the claimant is getting help and can provide a doctor's statement that any disabling conditions would persist through sobriety. For more information, see our article on how drug and alcohol use affects disability.

Attorneys understand that the disability process is stressful and often frustrating. However, they won't tolerate abusive or disrespectful language directed at them or their staff, no matter how good your case is. If you've behaved inappropriately, you should apologize, preferably in writing. Keep in mind that a lawyer doesn't have to represent a client with ongoing poor behavior.

Logistical or Financial Reasons

Even if you're a model client and your medical records are solid, attorneys can reject your case for reasons that don't have much to do with your chances of winning. Here are some other reasons that would make it difficult for an attorney to represent you well (or collect a good fee):

• you fired the disability attorney originally working on the case
• taking the case would mean not enough time to prepare for a hearing, or
• your past due benefits would result in a low fee (or none at all).

Claimants who've been represented in the past on a disability case can have difficulty finding a new attorney for the simple reason that the new attorney has more paperwork to do. Your previous attorney needs to formally withdraw in writing, and even if you win, your new attorney will probably have to file a fee petition in order to get paid—a headache for most lawyers.

Many disability applicants don't seek an attorney's help until they've scheduled a hearing in front of an administrative law judge (ALJ). But if a claimant contacts an attorney wanting representation for a hearing scheduled in less than a month, the lawyer won't have enough time to review the case file, write a brief, and get any additional evidence. Additionally, the SSA is generally unwilling to reschedule hearings without a good reason (such as illness). Don't wait until the last minute to get a lawyer on board.

Finally, attorneys might not take cases even with a high likelihood of success if they're not sure that they'll get paid for the effort. When you sign a typical disability fee agreement, you agree that your lawyer can take 25% (up to $7,200) from any backpay you're entitled to as a result of winning your case. Depending on the type of disability benefit you're applying for, the SSA calculates backpay based on your established onset date or protective filing date. If the date is very recent (say, a few months ago), your backpay might not result in enough attorney's fees.

Additional Reasons Why An Attorney Might Reject Your Case

You don't meet the technical qualifications for disability benefits. Unfortunately, not everyone is eligible for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) even if they meet the medical requirements for disability. 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.

You're in your twenties or thirties. Disability benefits are "permanent," meaning that Social Security generally assumes that a person who is found disabled won't re-enter the workforce. The older you are, the easier it becomes to establish that you can't return to work. On the other hand, the SSA is skeptical that a younger individual won't be able to work at even the easiest jobs. If you're under the age of 40, an attorney might not want to take your case unless you have very supportive medical documents.

You're working or collecting unemployment benefits. The SSA needs to see that you stopped working (or cut your hours below the substantial gainful activity (SGA) level) before the agency will even look at your medical records. If you haven't stopped working yet, lawyers will generally decline to take your case. Collecting unemployment benefits doesn't always compromise your disability claim, but might be the tipping point for an attorney on the fence about whether to represent you.

Do Disability Lawyers Drag Out Cases?

It's true that the longer your case takes, the greater the likelihood that you'll be awarded past-due benefits. Because disability attorneys are paid a percentage of any back pay you're awarded (25%, capped at $7,200), you might worry that your attorney will purposely delay your case in anticipation of a larger paycheck later.

But in reality, your attorney would much rather get paid a lower amount sooner than wait for a potentially larger paycheck that might arrive after several years, if at all. Lawyers, like clients, have bills that pile up while waiting for the outcome of disability claims. Additionally, the fee cap discourages lawyers from dragging the case out. An attorney with a client who receives two years in back due benefits—the average time it takes to approve a case—can easily hit the fee cap without having to cause unnecessary delay.

Finally, all practicing attorneys are subject to the professional ethics rules of their state bar association. A lawyer who is regularly, intentionally dragging out disability claims for the sole purpose of increasing backpay would likely be the subject of a bar complaint or even an investigation, hurting their professional reputation (and ensuring fewer clients in the future).

What Do I Do if I Can't Get a Disability Attorney?

If a lawyer doesn't think you have a case, or declines to take your case for other reasons, it's important that you ask the attorney or firm to explain why they won't represent you. You can then use this information to address any issues and strengthen your case for the next attorney or representative.

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.

_{Updated August 31, 2022}