How Disability Attorneys Develop Evidence to Win Your Social Security Appeal

Your attorney will ask your doctors for supportive statements, submit only the relevant medical records to the judge, and know how to handle bad evidence.

By , J.D. · University of Baltimore School of Law

In preparing to represent you in a disability appeal hearing, your attorney will want you to answer some detailed questions about your symptoms and limitations. In addition, your attorney needs an abundance of medical evidence to support your allegations.

What Medical Evidence Is Most Important to Win My Case?

The most important evidence you need to substantiate your claim for disability benefits is the opinion prepared by your treating doctor(s). You'll give your lawyer contact information for your treating doctors (the doctors you've seen for your condition) so that the lawyer can request your doctor to submit a written opinion of your diagnosis, prognosis, and functional limitations in an RFC (residual functional capacity) statement.

To help your attorney prepare the best case possible, provide your attorney with:

  • your complete medical history
  • the names and contact information of your treating doctors
  • dates and locations of any medical tests
  • the dates and locations of any hospitalizations, and
  • a complete medication list, including the dosage, prescribing doctor's names, and any documented side effects.

If you haven't seen a doctor regularly, your attorney may be able to develop medical evidence using consultative exams and testimony from you and a medical expert. (For more information, see our article on how not seeing a doctor affects your disability case and how a medical expert can help you get disability if you haven't seen a doctor recently).

Will My Attorney Use the Opinions of Every Doctor I've Seen?

Your lawyer will want to make sure that Social Security gives the opinions of your doctors as much weight as possible. To do this, your lawyer will want to:

  • request detailed opinions from doctors with whom you have a long relationship

  • use detailed opinions only from doctors who are specialists in diagnosing and treating your condition, and
  • make sure your doctor's opinion is supported by objective medical evidence and is consistent with other information in your file.

In the past, Social Security was required to give more weight to the opinions of treating doctors who have treated you for a period of time and who know your medical history. After the law changed, Social Security now only gives weight to medical opinions that are consistent with your medical evidence as a whole. For more information, see our article on when Social Security can discount your treating doctor's opinion.

    Does My Attorney Have to Submit All of My Medical Records?

    The short answer to this is no. When preparing for a disability hearing, an attorney will frequently receive hundreds of pages of medical records, many of which have nothing to do with your impairment. Your attorney will review the medical records to see what is relevant to your case and submit only that information to Social Security.

    Because of their heavy caseloads, administrative law judges (ALJ) do not have the time to sift through hundreds of pages of documents to determine what is relevant and what isn't. A good attorney will do his or her best to avoid an ALJ's ire by submitting only the evidence needed to fairly determine whether you have a disability. Your lawyer does, however, have to submit all records related to your disabling condition, even if the evidence isn't particularly helpful to your claim.

    What Will My Attorney Do With Bad Evidence?

    It's not uncommon for medical records to contain information that is not only unhelpful but may be harmful to a disability applicant's case. Social Security regulations and ethics rules require a disability attorney to submit all relevant evidence to Social Security.

    Fortunately, an experienced disability attorney is trained to handle "bad facts." For example, your records may contain a medical opinion by a physician or other medical provider that doesn't really support your claim that you're unable to work. Here are some examples of bad facts and how a lawyer can deal with them.

    Medical opinions. If your file includes an unhelpful medical opinion from a doctor, your attorney will ask you questions aimed at limiting the importance of the doctor's statement. For instance, your lawyer may ask you how long you had been a patient of the doctor, whether the doctor was a specialist in your illness, and whether you sought a second opinion.

    Inconsistent evidence about activities. If your records indicate you don't have a problem doing certain "activities of daily living," Social Security may take this to mean that you wouldn't struggle with similar activities at work. If a medical expert is at your hearing, your lawyer can cross-examine (question) the doctor to clarify when the ability to do certain ADLs doesn't translate into an ability to work. Your lawyer can request that a medical expert be at your hearing (by phone).

    Inconsistent statements. Another situation where conflicting statements might arise is when there are differences between what you said on your application or at your hearing and what you wrote on your ADL (activities of daily living) function report. Social Security often checks applicants' function reports to assess exactly what they're capable of doing, so it's important that your function report is accurate. If your function report doesn't properly reflect your disability, you should speak to a lawyer.

    Alcohol or drug use. If your records contain statements about your drug or alcohol abuse, it's especially important for your lawyer to explain to the ALJ what you're doing to treat your addiction. The ALJ can deny your claim if your drug or alcohol use contributes to your disability. But an ALJ will appreciate that both you and your attorney are straightforward about this type of "bad evidence" and may agree with your position. If you or your attorney attempt to cover up evidence of an active substance use problem, or mislead the ALJ about its importance, your credibility and your case may be damaged.

    What Evidence Does My Attorney Need to Prove I Can't Do Sedentary Work?

    If Social Security agrees that your medical condition doesn't allow you to do medium or light work, but thinks you can do sedentary work, you'll need to provide evidence that you can't even do sedentary work (in other words, a sit-down job). To prove that you can do what Social Security calls "less than sedentary work," your attorney will need to provide medical evidence that you have certain functional limitations, like needing to lie down frequently during the day or not being able to lift ten pounds. For more information, see our article on how to prove you can't do sedentary work.

    What Else Do Disability Lawyers Do?

    A good disability lawyer can develop the best theory of disability for winning your case, request additional tests or doctor statements, deal with evidence that can harm your case, and prepare you for your hearing.

    Hearing approval rates are about twice as high for applicants who bring lawyers. To learn how a disability lawyer handles other aspects of your case and your appeal hearing, see our article on how disability attorneys will handle your claim.

    Updated April 25, 2023

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