All too often our office is contacted by individuals who have been attempting to file for Social Security disability benefits, only to get denied (and repeatedly). A hardworking gentleman, we’ll call Mark, contacted our office just the other day in just such a circumstance. Providing his story will, I hope, prove instructive to those who are thinking about filing for disability benefits for the first time (or have filed previously and have been denied).
Before I begin, I think it’s important to set forth for those who may not understand whom the Social Security disability program is meant to assist. It for those who have been suffering from a severe medically determinable impairment which, despite prescribed treatment is expected to keep one disabled from working for what has been (or is likely to be) a year or longer (or, in the alternative, result in death).
Mark called our office looking for a Boston, MA Social Security lawyer after losing 2 different attorneys while awaiting hearing before an administrative law judge at the Boston, MA Office of Hearing Operations. He is a fifty-four (54) year old Boston, MA resident who has worked hard his entire life: first, working many years in housekeeping before choosing to work as a deli clerk and stocker at a large chain grocery store in Boston. As a result of his hard work, he had significant shoulder problems to show for it, requiring rotator cuff repair on one shoulder and then, once healed, he attempted to go back to work at his old position.
Unfortunately, the first attorney that agreed to represent Mark in his claim earlier on in his claim didn’t appear to notice that Mark filed very shortly after going out of work and that it remained unclear whether his condition would last for what would be a year or longer. Upon discovering that Mark had returned to work, he failed to provide him with any advice as to how this might impact his pending case. Mark’s first lawyer should have informed him is that if he is able to return to work inside of a year’s time, and the attempt to return to work lasts longer than 6 months, then he has undertaken what is deemed a “successful” return to work. In that event, he should no longer pursue his claim at the point in time he’s shown an ability to earn gainful wages (what is $1180.00 per month in 2018) on a regular and continuing basis for what has been longer 6 months. In order to qualify for what would be an unsuccessful work attempt (in which case the return to work would not interrupt the period of time that was counting towards one year), Mark would have had to go back out of work as a result of his disabling condition within 6 months. He was never informed about any of this: instead he was simply dumped by the wayside.
The second lawyer took on the case, seemingly after getting a history of his circumstances, just a month or two later, and understanding that Mark was continuing to work. At the point in time they determined that Mark had in fact returned to work for longer than 6 months (in fact, it had been 9 months), they, too, dumped Mark by the wayside with no explanation. Instead, Mark was left to go to the hearing by himself with the judge explaining to him that he had only gone back out of work the month before and so he was wondering why Mark was even in front of him at that point.
It was thus left to our office to explain to Mark about his need to show he’s remained disabled from working for what has been or would be a year or longer (and that his first period of disability had been interrupted by a successful return to work). Likewise, we had to advise him that he was now dealing with a new period of disability starting from when he had to go back out of work for what was additional rotator cuff surgery on his opposite hand. And now that he was only 4 months disabled from working (and in recovery), it was not entirely clear that he would remain out of work for what would be a year or longer. Mark was advised of his right to consider withdrawing his request for hearing and potentially start a new claim if and when it becomes more apparent that his most recent surgery will keep him out of work (and we likewise had to clarify for him, any work for which he’s reasonably suited by age, education and experience, for what will be a year or longer).
Needless to say, Mark was provided a disservice by any attorney not willing to explain to him the rules that would apply to his Social Security disability claim. If you are seeking representation, ensure that your attorney is communicating to you what needs to be proven in your case, and how any medical or vocational developments may be impacting it.
For a legal analysis of your Social Security disability claim, with no cost or obligation to you, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622.