§160 SOCIAL SECURITY DISABILITY COLLECTION 28
§160 Before Initial Interview
Successfully interviewing Social Security disability claimants
requires a basic understanding of how SSA determines whether a
claimant is or is not disabled and how the administrative appeal sys-
tem operates. In addition, every lawyer must address basic office
policy issues in handling disability cases and interviews.
§161 Office Policy Considerations
Here are some items to think about before setting your office policy:
• Are you going to represent claimants prior to the hearing stage?
• If you are not going to get involved prior to the hearing
stage, how are you going to ensure that the claimants will
call you back?
• Are you going to represent every claimant who contacts you
or are you going to screen cases?
• If you are going to screen cases, are you going to screen out
some cases on the telephone?
• Is an attorney or a paralegal going to screen cases?
• If you are going to screen cases, how are you going to do
it? Are you going to screen out only the frivolous cases? Or,
are you going to select cases using some sort of probability
of success or other criteria?
• If a claimant telephones when the 60-day time limit for re-
questing a hearing has nearly expired, are you going to have
the claimant come to your office or are you going to send
the claimant directly to the Social Security office?
• Are you going to suggest to all claimants that they file their
appeals before they see you or are you going to complete the
appeal forms for them when they come in?
• How are you going to handle the problem of expenses of
the case? Is your firm going to advance all expenses? What
about those long shot cases that can be won only if you
get the right medical test results? Who is going to pay for
expensive medical testing?
• Are you going to handle cases involving only SSI (where
there is no concurrent application for Social Security dis-
• Are you going to handle continuing disability review (CDR)
cases? If so, how will you deal with the problem of attor-
§162 One Approach to Dealing With
Different lawyers answer the questions in §161 differently. There
may be more differences of opinion among lawyers about these is-
sues than there are about how to prove disability. Answers to these
questions are subjective and are largely determined by an individu-
al lawyer’s style of representation and resources. There may be no
“right” answer. Rather than discuss these issues at any length, we’re
simply going to explain how the author’s firm deals with these matters:
• We have experimented with and have had good results with
representing claimants at the initial and reconsideration
stages. We focus our efforts at these levels on getting a good
report from a treating doctor that 1) addresses Listing issues
and 2) accurately describes a claimant’s residual functional
capacity. We ask treating doctors if they are willing to do a
consultative examination for the fee provided by SSA, and
if so, we ask SSA to use the treating doctor for the consul-
tative examination. See 20 C.F.R. § 404.1519h. In addition,
because claimants left on their own often do not provide
sufficient details, we help our client complete the Function
Report and other forms sent to the client by the state agency.
• We do not accept all cases on a contingent fee basis. We
decline to represent those relatively few claimants with friv-
olous cases. There is an additional small group of cases in
which we will undertake representation only on a non-con-
tingent fee basis after prepayment of all or part of the fee
into our trust account. Rarely does a claimant agree to such
a fee arrangement.
• Our paralegals begin screening cases on the telephone using
a telephone intake sheet (see §165), for taking notes to eval-
uate the case following the sequential evaluation process.
Many callers to our office do not have disability claims or
are seeking information about how to file an application. We
send literature to such callers.
• While we are alert to earmarks of frivolous cases, it is rare
that we can get enough information on the telephone to
make this determination. We usually schedule an appoint-
ment because, after seeing a claimant and talking with him
or her for a while, we may think of ways to win the case that
the claimant has not considered.
• We try to schedule appointments no earlier than one week
after the date of the telephone call and no later than four
weeks after the call. To cut down on the frequency of no
shows, we telephone claimants the day before their appoint-
ments with us to remind them about their appointments.
• In evaluating a case, we analyze the legal issues, try to esti-
mate the probability of success, expenses involved, attorney
time needed, and amount of benefits at stake. We weigh all of
these factors. We will take a difficult case on a contingent fee
(for example, involving an English-speaking claimant under
age 50—overall such cases have odds of about 2 to 1 against
the claimant being found disabled) if we have a theory why
the claimant is disabled under the law, if the case has average
expenses, average attorney time requirements, and average
benefits. Where there are significantly lower than average
benefits, inordinate attorney time requirements, or potential-
ly high expenses that cannot be borne by the claimant, we
may not accept the case with the fee based on our standard
two-tiered fee agreement, which appears at §178.3.1.
• We will evaluate the claimant’s chances of survival in the
real world of work (as opposed to the artificial one concoct-
ed by SSA) and if we’re convinced the claimant is never
going to work again, we will try to figure out a way to rep-
resent him or her.
• Anyone who calls us at the eleventh hour about an appeal is
sent directly to the Social Security office.
• We normally request that claimants file their appeals before
seeing us. Note that this suggestion is in the initial letter to
the claimant, §166. However, if a claimant comes in without
having first filed an appeal, if we accept the case, we will as-
sist the claimant in filing the appeal. We complete the appeal
form online for the claimant. We will also complete online the
companion form that goes with the Request for Reconsider-
ation or Request for Hearing, the Disability Report—Appeal
(SSA-3441). See §178.2.3 for the paper version of this form.
• We usually advance expenses; but it has been our expe-
rience that this area of practice has higher expenses as
a percentage of attorney’s fees than most other areas in
which attorneys accept contingent fee cases. If we can
anticipate that a case cannot be won without inordinate,
and very expensive, medical development, we will explain
the problem to the claimant and ask him or her to pay an
amount into our trust account to cover such expenses as a
condition of representation.
• We accept cases involving SSI where there is no concurrent
Social Security disability application; but we do not repre-
sent SSI children.
• We will handle continuing disability review (CDR) cases;
but we try to make arrangements for the fee, usually a con-
tingent fee of a set amount, to be paid into our trust account
before the case is completed. We make a special effort to
accommodate former clients.