Initial Client Contact

• Author: Thomas E. Bush/David A. Morton III/David Traver/Sarah H. Bohr/Curtis J. Fisher/Kimberly V. Cheiken
• Pages: 26-125

1-26

Chapter 1

Initial Client Contact

§160 Before Initial Interview

§161 Office Policy Considerations

§162 One Approach to Dealing With Disability Cases

§163 Telephone Contact

§164 Literature for Prospective Clients

§164.1 Memorandum: Common Questions About Applying for Disability Benefits

§165 Form: Social Security Disability Telephone Intake

§166 Form: Letter to Prospective Client

§167 Form: Claimant Questionnaire

§168 Form: Claimant Psychiatric Questionnaire

§169 Office Organization

§169.1 Databases

§169.2 Paralegals

§170 Initial Interview

§171 Observe the Claimant

§172 Determine Claim Type and Procedural Issues

§173 Use Denial Letters to Determine Why Claim Was Denied

§174 Analyze the Claimant’s Answers

§174.1 Use Interview and Analysis Forms to Evaluate Claimant’s Case

§175 Interview Form

§175.1 Form: Analysis

§176 Look for Problem Areas and Opportunities

§176.1 Onset Date

§176.2 Unsuccessful Work Attempts

§176.3 Working Claimants, Closed Period of Disability and Trial-Work Period

§176.4 Prior Applications

§176.5 Cases Where SSA Misinformation Deters Applying

§176.6 Receipt of Unemployment Compensation Benefits

§176.7 Americans With Disabilities Act Claims

§176.8 Evaluate the Listing of Impairments

§176.9 Past Relevant Work

§176.10 Education

§176.11 SSI Issues: Gifts, In-Kind Support, Loans and Assets

§176.11.1 Form: Sample SSI Cash Loan Agreement

§176.11.2 Form: Sample In-Kind Loan Agreement (Living in the Household of Another)

§176.11.3 Form: Sample In-Kind Loan Agreement With Person Outside the Household

(7th and 2nd Circuits Only)

§177 Begin Hearing Preparation at Initial Interview

§177.1 Educate Claimant About Disability Law

§177.2 Put Claimant at Ease About Hearing Process

§177.3 Record Claimant’s Strengths and Weaknesses as a Witness

§177.4 Identify Potential Witnesses

§177.5 Daily Diary

§177.6 List Things to Do

§177.7 Form: Intake Action Sheet

§177.8 Form: Monthly Headache Diary

§178 Necessary Forms

§178.1 Consent Forms

§178.2 SSA Forms

§178.2.1 Form: Appointment of Representative (SSA-1696-U6)

§178.2.2 Form: Request for Hearing (HA-501)

§178.2.3 Form: Disability Report — Appeal (SSA-3441)

27 INITIAL CLIENT CONTACT

§178.2.4 Form: Authorization to Disclose Information to the Social Security Administration

(SSA-827)

§178.2.5 Form: Consent for Release of Information (SSA-3288)

§178.3 Attorney Fees Contract

§178.3.1 Form: Two-Tiered Fee Agreement

§178.4 Direct Payment of Attorney Fees

§178.4.1 Form: Registration for Appointed Representative Services and Direct Payment

(SSA-1699)

§178.4.2 Form: Identifying Information for Possible Direct Payment of Authorized Fees

(SSA-1695)

§178.4.3 Form: Request for Business Entity Taxpayer Information (SSA-1694)

§178.5 Appointed Representative Services — Online Access to Clients’ Electronic Files

§178.6 Requirement That Appeals Be Filed Online

§178.7 Changing Your Address With SSA

§179 Begin Keeping Time Records

§180 After Initial Interview — Hearing Stage

§181 Form: Letter to Claimant Following Initial Interview — Hearing Stage

§182 Form: Initial Letter to Hearing Office (When Request for Hearing Has Already Been Filed)

§183 Form: Initial Letter to Social Security Office (With Alternative Language — Enclosing Request for Hearing or

Request for Hearing Filed Via Internet)

§184 Form: Letter to Social Security Office Transmitting Form SSA-1695

§190 After Initial Interview — Below Hearing Stage

§191 Form: Letter to Claimant Following Initial Interview — Below Hearing Stage

§192 Form: Initial Letter to SSA — No Appeal Due, Case Below Hearing Stage

§193 Form: Initial Letter to SSA or Request for Reconsideration Filed Via Internet

§194 Form: Claimant’s Consultative Examination Questionnaire

§195 Form: Memorandum to Claimant Re: Completing Function Report

§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-

ability benefits)?

• Are you going to handle continuing disability review (CDR)

cases? If so, how will you deal with the problem of attor-

ney’s fees?

§162 One Approach to Dealing With

Disability Cases

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.