Multiple Chemical Sensitivity and Social Security Disability, Part 7

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Multiple Chemical Sensitivity and Social Security Disability, Part 7

November 16, 2009

by Susie Collins

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There are many pitfalls for people with Multiple Chemical Sensitivity

applying for Social Security Disability Insurance. I recommend that MCS clients

get in touch with me before they make the Social Security Disability

Insurance application, or maybe even while they are still working and trying to

get accommodations from their employers.

 

 

 

Representation on your claim

 

One question people with Multiple Chemical Sensitivity always have is

whether or not to retain a representative on their Social Security Disability

Insurance claim, and, if so, when in the process is the best time to do

this. They may also want to know if it is best to get an attorney or a non

attorney, and if they should hire someone in their immediate area or someone

from a national firm.

 

Anyone is allowed to serve as a representative in a Social Security

Disability Insurance claim. Only attorneys and those representatives who are

certified by the Social Security Administration can get direct payment of their

fees, however. Others have to be paid directly by the client. Attorneys

are automatically allowed to both represent claimants before SSA and to obtain

direct payment of fees. Other people who wish to have withholding and

direct payment of fees have to take a national test and be certified by SSA.

 

Attorneys can practice before SSA in all 50 states so long as they are a

member of the bar in any one state. Other representatives can likewise

practice in any state.

 

One advantage of hiring an attorney rather than a non attorney is

accountability for malpractice. Attorneys will generally have malpractice

insurance, and this can be verified by checking with the bar association that

registers attorneys in the state or states in which they are licensed. Non

attorneys have no such insurance.

 

Another advantage of an attorney is the training they receive in the

practice of law, which is readily transferable to SSDI claims, and their years

of experience in the court systems. There are no training programs as such

for non attorney representatives, although some of them are trained as

vocational experts, nurses, paralegals, insurance claim representatives, etc.

 

If you do hire anyone, be sure that you find out exactly what their

experience is in Social Security disability claims, and possibly in the area of

your particular impairments as well. When it comes to MCS, most attorneys,

even those who specialize in disability claims, often have little experience.

 

My website, _www.MCSLegalHelp.com_ (http://www.MCSLegalHelp.com) , contains

a list of “Ten Questions To Ask Your Lawyer,†which can give you further

guidance.

 

 

When to get a representative

 

Many people who consult representatives before they are at the hearing

level are told to call back when their case gets to that point. In MCS cases,

however, it is my feeling that the sooner in the process you talk with

someone, the better. There are many pitfalls that you can get into in filling

out the application and other forms, going for medical examinations, and

getting reports from your doctors, not to mention seeing other doctors who may

be more specialized and knowledgeable about MCS and getting more

specialized testing performed. Also, the longer you are seeing a doctor before

the

hearing, the more weight is attached to his or her opinion, so it pays to get

on the right track with the right doctors as soon as possible.

 

As I discussed earlier in this series, just going for medical appointments

and/or into the Social Security offices may be problematic for MCS suff

erers, and we try to work out accommodations for each of those things for you

before you agree to go.

 

I therefore recommend that MCS clients get in touch with me before they

even make the application, or maybe while they are still working and trying

to get accommodations from their employers.

 

 

National or local

 

Every major city will have dozens of lawyers and other representatives who

advertize their availability for Social Security disability

representation. There are also a few “mega-firms†that advertise nationally.

Some of

those are law firms and some are not.

 

One of them advertises that they are “America’s Most Successful Social

Security Advocates.†When questioned about this, they say it is based on the

fact that they have won more cases than anyone else. I suppose that is true

in the sense that if you handle more cases than anyone else, you will win

more cases than anyone else. It also means that you will lose more cases

than anyone else, so they could just as accurately be called “America’s

Least Successful Social Security Advocates.â€

 

My experience has been that even with lawyers who are well versed in

Social Security disability and have many years of specialized practice, MCS

cases are still a rarity. I have seen the results of many hearings where it

appeared to me that the attorney did not understand MCS and was trying to

dance around it using psychological impairments or confusing it with

“allergies.

†It is my view that you have to be up on the science in this field to

make up for the lack of understanding of most mainstream doctors.

 

What the large national firms do is to assign your case to a clerical

person to work up and get the medical reports and records. Then, when the case

is ready for a hearing, they try to find a local attorney in your area to

handle the hearing and ship them the file a short time before the scheduled

date. Usually they do not pay the local attorney very much so they tend to

get new lawyers who are trying to break into the business.

 

To the extent that this may or may not work for the more regular types of

disability claims, I think it is ill suited in particular for MCS cases for

the reasons stated above. Some of the national advertisers are not even

attorneys and some of them are tied in with long term disability insurance

carriers from whom the client is referred. The client is told that if they use

this firm, they will not be charged a fee. However, this is deceptive; if

they get an independent representative, the fee charged will be deducted

from the amount of retroactive benefits that has to be re-paid to the

insurance company anyway, so there is no charge to the client either way. The

disadvantage here is that the SSDI representative is not independent of the

insurance carrier.

 

This comes into play where the insurance carrier decides to cut off the

claimant after two years when the definition of disability in the policy

shifts or when exclusions kick in. In particular, there are usually exclusions

in employer sponsored disability plans for conditions caused “in whole or

in part from mental impairments,†and sometimes for conditions which are “

self reported.†The policy is then limited to two years of payments.

 

If someone who has been getting insurance payments for less than two years

is referred to a company for representation on Social Security disability,

there is an incentive to try to categorize the claim as involving a mental

impairment so the insurance company can bail out. Even if they do that,

they may still have the temerity to ask for repayment of the retroactive

benefits that overlap and the representative may counsel the client that they

have to make the payment. (I tell them to blow it off and let the insurance

company come after them while we appeal the denial.)

 

Bear in mind as well that there are really no ethical constraints or

obligations towards you when you are represented by non attorneys, whereas the

attorneys are monitored by their state bars and can be sanctioned.

 

 

Big vs. little (The Zen of Law Practice)

 

While I am on the subject, I wanted to say something about “big†versus “

little†in terms of law firms and others practicing in this area.

 

I was one of the pioneers in attorney advertising in my state, having

worked at a legal clinic which actually advertised before it was legal to do so

to try and prompt a court challenge on the historic restrictions to lawyer

advertising. Someone else beat us to that, however. In those days,

advertising was new and mostly in print, and you could do it for a reasonable

amount of money.

 

Another barrier was broken when lawyers started to advertise on TV. This

upped the stakes and increased the costs exponentially. My experience is

that the quality of the services you as a client may receive may tend to be

more or less inversely proportional to the amount of advertising the firm is

doing. It’s simple economics. If you are spending a large amount of money

on advertising, you have to have a large practice to support it, and you

have to cut costs in other areas to make up for the advertising expense.

 

This is particularly true in Social Security representation where the fees

are limited. You don’t get any “windfall†cases like in personal injury

where you can potentially make a lot of money on one case to offset the more

modest returns elsewhere.

 

One way that you cut costs is to set up your practice basically as an “

assembly line†where you have clerical people do most of the work and then

hire cheap recent law school graduates or others to do the actual hearings

with little preparation time. I’m not saying that everyone does that who

advertises a lot, but the economics of that type of practice are what they are.

 

The Internet has changed that somewhat. We are now able to focus our

marketing to certain niches and keep the overhead from becoming unbalanced with

large traditional advertising costs. This allows us to maintain a lower

case load and give more personal attention. In some situations, like my own,

we can even practice out of our homes and reduce the overhead further, thus

allowing more attorney time to each case. It’s what you net, not what you

gross. Less is more.

 

 

This is my last installment in the series on disability law as it relates

to MCS claims.

 

 

Readers are referred to my website, _www.MCSLegalHelp.com_

(http://www.MCSLegalHelp.com) , for more information.

 

 

Thank you.

 

Michael J. Walkup

Attorney

 

 

_Link_

(http://www.thecanaryreport.org/2009/06/01/multiple-chemical-sensitivity-and-soc\

ial-security-disability/) to SSDI Part 1.

 

_Link_

(http://www.thecanaryreport.org/2009/06/25/multiple-chemical-sensitivity-and-soc\

ial-security-disability-part-2/) to SSDI Part 2.

_Link_

(http://www.thecanaryreport.org/2009/07/22/multiple-chemical-sensitivity-and-soc\

ial-security-disability-part-3/) to SSDI Part 3.

_Link_ (http://www.thecanaryreport.org/2009/09/24/multiple-chemical-se

nsitivity-and-social-security-disability-part-4/) to SSDI Part 4.

_Link_

(http://www.thecanaryreport.org/2009/09/26/multiple-chemical-sensitivity-and-soc\

ial-security-disability-part-5/) to SSDI Part 5.

_Link_

(http://www.thecanaryreport.org/2009/10/21/multiple-chemical-sensitivity-and-soc\

ial-security-disability-part-6/) to SSDI Part 6.

_Link_

(http://www.thecanaryreport.org/2009/11/16/multiple-chemical-sensitivity-and-soc\

ial-security-disability-part-7/) to SSDI Part 7.

_Link_

(http://www.thecanaryreport.org/2009/05/03/multiple-chemical-sensitivity-and-the\

-ada/) to Multiple Chemical Sensitivity and the Americans with

Disabilities Act (ADA).

_Link_

(http://www.thecanaryreport.org/2009/04/01/litigation-and-multiple-chemical-sens\

itivity/) to Litigation and Multiple Chemical Sensitivity.

_Link_

(http://www.thecanaryreport.org/2009/03/01/multiple-chemical-sensitivity-and-wor\

kers-compensation/) to Multiple Chemical Sensitivity and

Workers Compensation.

_Link_

(http://www.thecanaryreport.org/2009/02/17/multiple-chemical-sensitivity-and-dis\

ability-insurance-claims/) to Multiple Chemical Sensitivity

and disability insurance claims.

_Link_

(http://www.thecanaryreport.org/2009/02/02/disability-benefits-due-to-multiple-c\

hemical-sensitivity/) to How to apply for disability benefits

due to Multiple Chemical Sensitivity.

_Link_

(http://www.thecanaryreport.org/category/contributors/michael-walkup/) to

entire category of columns.