New York Social Security Disability Lawyer Blog

I just reviewed the case of a claimant (we'll call her P) who first got hurt in 1998. P worked until the end of 2001 and claims that she became disabled in February 2002. The problem is, P never filed for disability benefits until August 2008! She came to us in March 2009, after her claim was denied and she filed for a hearing.

Almost half of all the cases we win are won on the initial application. We actually win over half of the initial applications we file ourselves---but, but of course many of our clients, like P, don't come to us until after they have filed the initial application on their own. On its face there's nothing wrong with that.

The real issue is when the claim is filed. Even if a claimant is getting other benefits, or "planning" to return to work, I still don't understand why some people wait years before even filing their claims. Not only do claimants lose out on years of potential benefits, but the longer a person waits to apply, the harder it may be to obtain the medical records necessary to show disability while they are still covered for benefits.

Getting back to P: now it's our job to show that her disability began before the end of 2006, when her coverage ended for Social Security Disability. Some of the records we need are no longer available, because medical records only have to be retained for seven years. More recently, there is also a gap in the medical evidence, due to P's lack of insurance and her frustration over lack of recovery. The result is that her claim is going to be a lot harder to prove than it would have been had she applied within a year or two of stopping work, while still seeing her doctors regularly.

Even if we are successful at P's hearing, her retroactive benefits can only go back a year from when she applied. P has lost six years of benefits! It's a scenario we see over and over again. Statistics show that having an attorney improves your chances of success. Our statistics show that we at Insler & Hermann can help you win sooner than the averages. But no one can win if they don't apply! I'd rather tell a prospective client he or she is calling me too soon than have them call too late for me to help at all!

You can always go back to work, even with a claim pending, but you can't backdate when your claim is filed. Waiting to apply not only costs time; it can also cost you money.

Lew Insler

The Social Security Administration is scheduling video hearings more and more frequently. We, and many of the Judges with whom we have discussed this, do not really like them. We advise almost all of our clients to decline the video hearing and request an in-person hearing---something to which every claimant has an absolute right under the current Regulations.

Why are we against them? You can judge a lot more about someone in person than you can on a two-dimensional TV screen, no matter how big it is. Think about how different it is watching a ball game at home versus being at the stadium. At the game you can watch the players on the sidelines, not just see the play on the field.

The same is true for a Social Security Disability hearing. In some cases there is a real "feel" about a disabled person that can never be transmitted through a camera. This is especially true in cases where the claimant has psychological impairments.

The slight delay in the system also makes it harder for either side to follow the discussion. Also, the less than state of the art system limits what the Judge can observe about a claimant. This can extend to "off the record" observations such as a claimant's difficulty getting into the hearing room or out of the seat after his or her hearing concludes.

Finally, there is one subtle but very important aspect that hurts claimants who opt for a video hearing. I believe it is easier for a Judge to decline a case for someone he or she has never really "met." When I prepare clients for their hearing I always tell them that this is the only time in a Social Security claim they will come face to face with the decision maker. I believe that if the initial decisions included some in-person connection with the claims analysts, far more cases would be allowed. Putting the Hearings Judge on the other side of a camera puts him one step closer to that anonymous claims analyst.

Video hearings may help the agency handle more cases, but the cost is borne by those who can least afford it: the claimants.

Lew Insler