What Disability Claims Is an Attorney Likely to Reject?

Like attorneys in most areas of legal practice, disability lawyers have the ability to pick and choose which cases they take. Disability lawyers can decline (or drop) a case for many reasons, such as poor medical records, uncooperative claimants, or simply keeping their workload at a manageable level. The financial calculus behind these factors is Social Security’s requirement that attorneys work on contingency, meaning they only get paid if you’re awarded benefits.

So because disability attorneys risk working on a case that they’ll ultimately receive no payment for, they can refuse to take cases that they think are unlikely to win. Don’t take it personally if your disability lawyer dropped your case—you can learn valuable information about how to strengthen your claim and increase your chances of getting approved.

Why Would a Disability Lawyer Reject or Drop My Case?

Attorneys 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. Below 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.

Lawyers 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. You can start by regularly visiting a physician, psychologist, or other medical professional. Once you’ve established a relationship with a doctor, you’ll know what treatment methods to pursue. Follow up on those treatments and report back to your medical provider so Social Security has enough records to review when deciding your claim.

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 get paid properly):

• 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. 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, Social Security 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 $9,200) from any backpay you’re entitled to as a result of winning your case. Depending on the type of disability benefit, Social Security will calculate your backpay based on your established onset date or protective filing date. If the date is very recent—say, a few months ago—the backpay might not result in enough attorneys’ fees.

Additional Reasons Why An Attorney Might Reject Your Case

Below are a few other reasons why a disability lawyer might drop or decline to take 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. If you don’t meet the non-medical criteria for at least one kind of benefit, there’s not much a lawyer can do to help, and they will likely decline your case.

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 agency 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. Social Security needs to see that you stopped working (or aren’t working at or above the substantial gainful activity 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 $9,200), 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 to Do After Your Lawyer Rejects or Drops Your Case

After your lawyer rejects your case, it’s important that you ask the attorney or firm to explain why they won't represent you. For example, was your medical record underdeveloped? Was the firm already dealing with a heavy caseload and realized it couldn’t ethically take on more clients? Was your claim unlikely to result in enough attorneys’ fees to make representation worthwhile? Use this information to address any issues and build your case for your next advocate.

You should start looking for your new representative right away. It’s very important that you make sure to ask your old lawyer to formally withdraw from your case and relinquish all claims to attorneys’ fees. Having the “baggage” of an attorney who hasn’t yet been cut loose from your case can make it harder to find a new one. If you’ve already been scheduled for a disability hearing, you should contact Social Security and request that the hearing be postponed so that you have time to find a new lawyer.

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

While it’s a smart idea to hire an attorney if possible, you aren’t obligated to have one in order to get benefits. However, you should familiarize yourself with procedures, definitions, and requirements before you proceed on your own. One method is by reading Nolo's Guide to Social Security Disability, by David Morton, M.D., a former medical consultant for Social Security disability. You can also check out our section of articles on representing yourself at a disability hearing for more information, including basics as well as advanced techniques.