The Importance of having an Experienced and Aggressive Social Security Disability Lawyer at Hearing in Massachusetts and Elsewhere

There are a number of reasons one should have their case reviewed and handled by an experienced Social Security disability lawyer as they head to hearing.  Unfortunately, all too often we are contacted by individuals as they are either approaching hearing or following an unfavorable decision where one, their case has been handled by either a lawyer who does not concentrate their practice in disability cases or two, has been handled by an advocacy group (of non-lawyers) or a lawyer who is taking on too many cases to pay personal attention to their individual case.  There are a number of considerations that should be taking place as an individual is approaching hearing to ensure that they will present the strongest case possible to the Administrative Law Judge (ALJ) that will be hearing the case.

From the very outset, an attorney should be helping guide their client as to the types of treatment and medications that are appropriate given their individual medical circumstances: have the appropriate tests  been undertaken, have they attempted the right types of medication, have they been referred to the right types of specialists?  These are the types of questions that need to be asked from the outset of representation (which is not to mention, on an ongoing basis as the claimant is proceeding through the hearing process.  All too often, we see individuals who have proceeded to hearing or are about to proceed to hearing without having undergone the appropriate types of treatment for their particular medical condition(s).  The Social Security regulations require an individual to prove that they remain disabled from undertaking gainful employment as a result of a severe medical impairment despite prescribed treatment.  This means that the ALJ you will be appearing in front of will expect that you are doing everything possible to get better (which means seeing the appropriate specialists for your condition and trying the medications meant to address your particular condition(s)).   All too often, those suffering from Fibromyalgia, for example, have not been seeing a rheumatologist (a specialist for such a condition).  Someone suffering from a severe back condition has not been referred to an orthopedic specialist or a surgeon (or for an MRI, which might be appropriate).  Someone suffering from a severe mental health condition (whether it be an anxiety disorder, depressive disorder, bipolar disorder, etc.) is not being seen by a counselor and a psychiatrist.   If the attorney is not speaking with their client about the types of treatment they’re receiving and is not advising as to the appropriateness of the treatment they’re receiving, there will be concern down the road that the ALJ presiding over your case will determine there is insufficient evidence to prove the claimant’s condition remains severe and disabling, despite prescribed treatment.

An experienced and aggressive attorney will not only ensure that their clients/claimants are treating with specialists for any condition they believe to be severe, but also ensure that medical questionnaires addressing the severity of their condition is being obtained from these specialists.   Appropriate questionnaires address not only the objective findings, diagnoses and symptoms associated with the condition(s) from which the client is suffering, but also the residual functional capacity (that is to say, the functional limitations) resulting from the medical condition(s).   Again, it is important that these questionnaires come from treating sources that are specialists and not simply from one’s primary care physician (whose opinions carry considerably less weight with the judges).  ALJ’s provide considerably more weight to questionnaires that are addressed by specialists: likewise, they don’t want to see that appointments with these specialists are taking place only for purposes of one’s Social Security case.  The ALJ’s are looking to see that the client/claimant is invested in getting better, and that one’s goal is to get better enough to return to work (and not simply to document their claim so as to obtain disability benefits).   Thus, treatment should be established over a lengthy period of time with the various specialists with a view that this is both good for the client/claimant from a personal perspective (that is, they’ll be getting the best treatment available for their condition and so they will stand their best chance of getting better) and 2) it will best document the nature and severity of one’s medical conditions over a period of time of treatment (that will show one’s struggle to get better).  Again, one needs to show that they have remained disabled “despite prescribed treatment.”

As one prepares for and awaits hearing, it is important that their attorney is reviewing their case file to determine what records are missing and should be obtained in anticipation of hearing so as to provide the hearing judge with a complete file for their review.  Likewise, it is always helpful for the lawyer to undertake a pre-hearing brief for the presiding judge, explaining why the case has been decided incorrectly on prior occasions and what additional evidence makes clear that the claimant remains disabled from gainful employment and entitled to benefits.  In many cases, a hearing can be avoided altogether by an attorney who has aggressively documented the file and provided a brief that explains to the presiding judge why a favorable decision is warranted prior to the need to go to hearing.

All too many times we see a lack of attention and preparation to an individual’s file that either has caused either an unfavorable decision already or has caused significant harm to a claimant as they have not been advised how they should have been proceeding (this in turn may cause a significant impediment to proceeding to hearing without either a delay in the proceedings or, in some cases, the need to restart an application at a later time after appropriate treatment has been established or reestablished).   Thus, one should ensure as early on as possible in the process that they are seeking representation from a disability attorney who is invested in each of their client’s cases, providing guidance from the very outset of their involvement.

For a comprehensive, no cost evaluation of your Social Security Disability Insurance claim to determine whether you are receiving the assistance you deserve, contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 at this time.



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