Applying for SSI – Part 5: preparing for the appeal
When you get the letter stating that your request for reconsideration was denied, you also get a form to request an appeal before an Administrative Law Judge. The request must be filed within 60 days. I quickly sent the request, and then started looking into attorneys.
There are a number of attorneys who specialize in SSI and SSDI appeals. You may have seen some of their ads on TV, on billboards at bus stops, on the covers of phone books, etc. I picked three in our area, looked at their websites, and contacted their offices by phone.
Here’s the good news/bad news about hiring an attorney. Good news: if they don’t win the case, you don’t have to pay them.
What’s the bad news? It isn’t the fact that you have to pay the attorney if s/he wins; that only seems fair! Here’s how it works: If the attorney wins the appeal, not only will the monthly payments for the claimant start coming, but the SSA will send backpay that covers the amount the claimant should have been receiving, from the date of the initial application onward. This is typically thousands of dollars. The attorney will get 25% of that. Usually the SSA routes the 25% directly to the attorney, and the claimant receives the balance of the backpay.
No, the bad news is that the attorney won’t take the case if s/he doesn’t think it is winnable. And that’s what we ran into.
Of the three attorneys I contacted that spring, I spoke to one directly on the phone. He was very patient in explaining what we would have to prove in order to win the case (which was pretty much the Residual Functional Capacity stuff I wrote about in Part 2). At the time, because Nathan was living independently, had graduated high school, and had never been hospitalized or arrested, it didn’t seem like he met SSA’s criteria for being mentally disabled. The attorney said if anything changed for the worse, I could call him back and he’d look at the case again.
For the second law office, Nathan and I were given a face-to-face appointment with a paralegal. Here, I could show her our best supporting documents. And she said, I’m sorry, but this isn’t strong enough. But if anything changed for the worse, we could give them a call.
For the third law office I called, I was transferred to a paralegal. She also said the case was too weak. A couple of additional things I learned from her: because the system was so backlogged, the hearing wasn’t likely to happen for at least a year. And, any attorney would probably want to start preparing the case about six months before the hearing was likely to occur. Their office would need time to request paperwork from the mental health care providers who hadn’t come through yet (like Nathan’s psychiatrist Dr. W, mentioned in Part 4). This meant, if I were going to hire an attorney, I’d have about another 3 to 4 months to find one.
I found myself wondering if we should be “rooting” for Nathan to have a bad episode in the next four months so that an attorney would take the case! In trying to support him to be as functional as possible, had we positioned him in this neverland between “clearly disabled” and “OK”, where no assistance was available? Should we stop paying for his apartment, to render him homeless?
Then a couple of big distractions came up in my life: for the first time in years I was given a project to manage at work, and my husband and I decided to move (the first time in 20+ years) to the town we work in. The move proceeded very quickly, leaving little time for focusing on anything else.
In early October we had been in our new house for only a couple of weeks when a letter from the SSA Office of Disability Adjudication and Review (ODAR) arrived. Surprise! The hearing was scheduled for the afternoon of November 2. No time to hire an attorney, and I had less than a month to prepare. (The elapsed time between filing the appeal and getting the hearing was 9 months, not “at least a year.” This was one time I was sorry the federal government was more efficient than I had expected!)
The letter stated I could fax or mail additional supporting evidence to ODAR. When I called for clarification, they told me it was best if the judge received the new evidence at least a week in advance of the hearing, but it could be submitted the day before if necessary. I could also request a CD of all the documentation the SSA had collected: what I had supplied, and what they had gotten from (some of) Nathan’s mental health care providers. I requested the CD, and it came pretty quickly.
Was there anything else I could do (besides panic)? I faxed a few extra pieces of documentation to ODAR. And amidst the unpacked boxes at home, I snatched moments here and there to review what I’d learned in the spring and to look at additional websites. That’s when the whole “residual functional capacity” thing popped into better focus for me. I downloaded an RFC form and faxed it to Dr. W on the 19th, pleading for him to complete it within ten days. I also gave the form to our family counselor, who had been seeing Nathan weekly since the beginning of the year. She had told me the judge usually doesn’t put much weight on the opinion of non-psychiatrists or non–psychologists, but I figured there was nothing to lose by getting her input.
Ten days passed, and I hadn’t received the form back from Dr. W. His office staff had no record of it. I faxed it again with another pleading note. Meanwhile, our family counselor had started on her form, and promised to complete it in time.
On Halloween weekend, Dr. W finally faxed me the completed form. He even faxed me corrected pages after I’d found some blanks and some contradictory answers. Better late than never…. I studied his answers against SSA’s criteria (Parts A, B, and C) for psychiatric disability.
It looked to me like Nathan would qualify! On a piece of paper to take to the hearing I outlined my understanding of how Nathan met the criteria.
A night or two before the hearing I looked online one more time, and something else that I’d seen before popped out at me: Global Assessment of Functioning. (We will now pause while everyone reading this comes up with scores for themselves, relatives, and acquaintances. I’ve wondered if some mental health care providers go around thinking about GAF scores for random people they meet: “Whoa! She’s definitely in the 60s!” Dr. W once told me that no one gets 100, except maybe people like Mother Teresa.)
Ready to keep reading? OK, so GAF scores had appeared in five evaluations done on Nathan over the years. As you’ll notice in the “criteria” hyperlink above (to the Serrano Lawyers website), to qualify, a claimant’s GAF scores “usually have to remain in the range of 50 or below despite treatment.” A claimant with GAF scores in the 50s may qualify if certain other conditions occur.
Nathan’s five GAF scores had ranged from 30 to 58, with 58 being the only one over 50. Another piece of evidence in our favor! I added it to the piece of paper to take to the hearing. (Why hadn’t the attorneys asked me about this?)
Finally, our family counselor handed me her RFC form the evening before the hearing. It supported what Dr. W had said, and then some. She also had prepared a two-page letter about Nathan’s frame of mind. It was (and is) depressing to read, but I was glad to receive another compelling piece of evidence. I faxed this paperwork to ODAR the morning of the hearing, calling first to make sure the judge’s office knew it was coming.
Needless to say, my GAF score that morning was probably in the neighborhood of 75 – 85. Difficulty concentrating? Check. Mild anxiety? Check.
Then at last, it was time for the hearing.