Are lawyers slowing down Social Security disability cases?

A commenter recently wrote:

BEWARE!  Attorneys will stretch out the claim filing because the longer it takes, the more money they get.

As I wrote in Can You Pick Your Lawyer Out of a Line-Up,  lawyers should work for their money.  So, if you are not getting value from your representative, maybe you should change who you are working with. However, it is something of a myth that lawyers can speed up or slow down Social Security cases. Of course, a lot of this perpetrated by legal advertising. You have probably seen more than one ad touting “Faster Results!”

Let’s look at this issue.

What are lawyers’ promises of ‘Faster Results’ really about?

In most medium-sized markets, there are often a dozen lawyers, big and small, competing for your business. In a large market, there could be scores of attorneys competing against each other. Nowadays, you can also add large national companies trying to scoop up as many cases as possible like a blue whale trawling for plankton. The competition isn’t for winning your case; it’s for getting hired! While the lawyer/company won’t get paid unless the case is won, they don’t even get a chance to win the case unless you pick them!

However, since Social Security determines the fees lawyers can charge, you don’t see competition on price. Instead, you get the promise of “Whiter Whites!” which in legal circles translates to “Faster Results!” or “99% Success Rate” or “150 Years Combined Experience.” I have written about the last two previously, so let’s consider the faster results pitch.

It is certainly a compelling offer. Who doesn’t want at least a chance of getting their case done faster? However, are you about to sign on with a better firm, or are you just getting flim-flammed?

  • If a representative promises faster results, the results are faster than what? Faster than the national average? That might only mean that they work in one of 25 states that is processes cases faster than the other 25 states. That may not be saying much.
  • If an representative claims “most of our cases are approved without a hearing!” To my jaded ears that sounds like they selectively pick cases which are likely to be approved anyway and brief them. Explaining why a case should be approved certainly helps the claimant and counts as work. However, sticking with easy cases is like never getting beyond tic-tak-toe, it doesn’t build legal muscles. Do you get a discount because your case is easy? Probably not.

If you still feel compelled to contact a law firm or non-lawyer representative company promising fast results, remember to ask these four questions:

  1. You promise faster results. Faster than what?
  2. Do you guarantee a decision within a certain number of months?
  3. Do you guarantee a decision without a hearing?
  4. What if you don’t deliver? Do you cut your fees? By how much?
Don’t expect firm answers though. Law is by its nature fickle. Trying to nail down how long a case may take is like trying to nail jello to the wall. However, that is what makes promises of speed, in my opinion, misleading.

Do lawyers slow down Social Security cases to make more money?

Now, let’s consider the flip side of this. Can, and more importantly, do lawyers slow down cases.

It is completely true that since lawyers get a percentage of the back benefits, the longer a case takes, the more a lawyer may conceivable make — at least, up to the fee cap set by Social Security. However, are lawyers slowing down cases. No.

Bull****! I switched lawyers after waiting a year and got my hearing in a month! My old lawyer must have been holding my case back!

A number of cases happen just that way: a long wait with lawyer 1, then a relatively rapid hearing with lawyer 2. However, consider that in every jurisdiction, there is an average number of months that cases wait to get a hearing. In Colorado, it is about 14 months after the filing of the appeal. Put another way, about 14 months after filing an appeal, you can expect a hearing to be scheduled. Sometimes people get tired of their first lawyer “getting nothing done” after a year and fire them. Then, they switch to a new lawyer who gets a hearing in 2 months! Wow, that lawyer must be amazing!

Well, not really. It only means it takes 14 months to get a hearing in that jurisdiction. You waiting 12 months with the first lawyer and the last two months with the second. There is a lot of coincidence masquerading as results.

Note: there a lot a lawyer can do for you: obtain evidence, file briefs, perform analysis, prepare you for your hearing. However, one thing a lawyer cannot do for you is make Social Security move faster than it wants to. No one can force SSA to make a decision before it is ready. The reason Social Security cases take so long is that there an enormous backlog of cases waiting to get through the system.

When you hire a representative, you are hiring someone to stand in line with you and help get you ready while you wait to get to the front. However, they cannot make the line move faster. If you change the person you’re waiting with just before you get to the front, it’s not the change that caused you to get to the front of the line. It is that your turn finally came up! The problem is that you don’t see the line in a Social Security case. You don’t know how many people are in front of you. All you know is that you waited a year with the old attorney, and only a couple of months with the new one.

What can you do about this? Ask your representative how long cases take in your jurisdiction. Even if you can’t see the line of people ahead of you, you will have an idea of how long it should take to get to the front of the line.

Well, I know someone who filed at the same time and used a different lawyer and their case already had a hearing. So, why am I still waiting with you?

Yup, that can happen. In addition to an average time to get a hearing scheduled. There is also a range. Again referring to Colorado: while the average time for a hearing is about 14 months, it may be a short as six months to as long as 18 months for the hearing to be scheduled. Also, some cases are expedited due to dire need or because the claimant is a soldier. And some cases get sent out-of-state to be worked up by other hearing offices or by a national hearing center. Then there are differences in the Social Security staff handling cases, and in the number of openings on the judges’ dockets. Any of these can speed up or slow down how long it takes to get a hearing. The result is some cases move faster than others. Although, lawyers certainly do not mind taking the credit when a case is resolved faster.

You still haven’t answered if lawyers slow down cases!

Ok. No, lawyers do not try to slow down cases. There are lawyers who may not do very much – which is bad enough! However, just as lawyers cannot really speed up a case, lawyers cannot slow down a case either. That power rests completely with Social Security. The one exception is if a lawyer has to request a continuance for a scheduled hearing. However, that is not likely to happen without you knowing about it and the reasons for the delay.

So, what do you think? Are lawyers slowing down Social Security cases?

Image provided by Public Domain Archive.

  • Social Security Disability

    I have come across this point the past and to certain degree I do think that the lawyers are slowing down the process. Lawyers in the state of Louisiana often complain that not only do the judges approve a small amount of the cases, but also that there is no backlog.

    Having no backlog is good for the claimant, but not for the attorney. Mainly, because the back pay is lower and thus the amount of money that the attorney makes is lower.

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  • http://www.keriestone.com/ Kerie Stone

    Well said!  As a former ODAR attorney I saw that some firms did cause delays.  However, much more common are the clients who blame the attorneys/reps for delays that are not in anyone’s control.   I think that your 4 questions can really help people to pick the right representative.  I’d be ready to answer.  I agree that” there is a lot of coincidence masquerading as results.”  If a claimant comes to me b/c they are frustrated by the wait but I feel that their attorney/rep is doing their job I do not just steal the victory.  I explain the truth to the client.  If a client comes to me and their attorney/representative has not done a thing in a year, well then all’s fair!!!! 

  • LisaGDouglas

    Great article.  Well done!  Social security cases do take a long time to get to the other side.  I’ve had clients ask me if causing a delay in the case would provide additional monies to the client.  As far as I can see, these case timelines are dictated by the system, not any one attorney.  Your article was right on and very well spoken.  I must admit it was your headline that captured my attention.  I enjoy social security cases and these types of clients are so very gracious for any help they receive. 
    Lisa Douglas

  • Ggrainey5

    Social Security has a huge backlog that has snowballed over the years and as a result, the wait time for decisions can be quite lengthy.  The average wait time in our office for a hearing is 12 months from date of filing.  That is actually quite fast compared to other states.  DDS will make decisions whether or not they have all medical information. They is no sure fire way to delay any case.  I have seen cases stay at DDS for over 10 months only to get pulled for DQB and have to wait an additional 3-5 months for a decision.  I can understand claimant’s frustrations due to the lengthy process, but that’s just what it is, lengthy, nothing more.

  • Nicole Franco

    Well written and accurate picture.

  • Jim Williams

    This is true. My lawyer, in fact, filed the appeal the very same day the first denial letter came in the mail. They could have waited 59 days to get another 2 months (you do have 60 days to appeal), but they filed the reconsideration appeal the minute the denial letter was opened. So, lawyers do not slow down the system. The system itself is slow enough. Lawyers don’t need to do anything to get maximum results by slowing efforts.

  • Susan Peterson

    I wonder why no lawyer has sued SSA about the use of the outdated Dictionary of Occupational Titles. At hearings level you can say it is outdated and bring in a vocational expert instead. But at the initial level, your claimant can be sent to a simple sedentary job most of which are factory jobs which don’t exist in the US. Why is there no class action lawsuit about this? I really did suspect it was because it benefits no lawyer to challege the use of the DOT.