National Invisible Chronic Illness Awareness Week

Social Security and Long Term Disability Law

Scott Davis, Attorney at Law

Attorney Scott E. Davis is regarded as one of our nation’s legal specialists in representing clients who are disabled due to fibromyalgia or chronic fatigue immune dysfunction syndrome. Mr. Davis has successfully represented Social Security disability clients of all ages throughout the United States.

Mr. Davis’ practice requires him to travel extensively to every region of the United States to represent clients at Social Security disability hearings. Mr. Davis has won Social Security disability cases in every region of the United States and in approximately 40 states. And Mr. Davis’ extensive experience is evident in the fact that his firm wins chronic pain and fatigue Social Security disability cases over 90% of the time. This success rate is significantly higher than the average disability attorney and more than double the success rate of Social Security claimants who are not represented. Perhaps most impressive about this success rate is the fact that chronic pain and chronic fatigue disability cases are often more difficult to win than the average case.

Mr. Davis’ extensive experience in representing chronic pain and chronic fatigue clients has provided him a very unique and compassionate understanding of the complex issues his clients face on a daily basis.

Mr. Davis tries to define his legal practice in three words… compassion, preparation, and persistence.

Mr. Davis resides in Phoenix, Arizona with his wife and two sons.

Visit his website | Read some excellent articles on SSI and SSDI from Scott

Social Security and Long Term Disability Law

Debbie: Hi everyone and welcome to the National Invisible Chronic Illness Awareness Week seminar. My name is Debbie and I'll be your host for this hour. Shortly our guest will present the topic, after which there will be a time for questions and answers.

Now I'd like to introduce you to our special guest Scott Davis, Attorney at Law who represents people with chronic illness. But, first, I'll open in prayer before we begin.

Father God we thank you for this opportunity to meet with someone who is so concerned for those of us with chronic illness. We ask that you will be with Scott as he speaks and that this will be a time that brings glory to you. In Jesus name we pray, Amen.

We are just going to go straight to questions and answers, but before we do that is there anything you'd like to say Scott?

scott_davis: Hi everyone, are we ready to start

Yes, a little background, I am an attorney who resides in Phoenix and I specialize in social security and long term disability claims, essentially suing insurance companies who are denying clients' claims. I represent clients in Arizona and Nevada where I am licensed to practice. I appreciate everyone attending tonight and please bear with my typing.

I have represented over 1800 social security clients who had primarily chronic pain and fatigue and have won cases in over 40 states and have appeared before over 300 judges. We have won cases over 95% of the time.

On my website at www.scottdavispc.com, there are a number of articles that I have written about disability law and how to prepare and win cases. The articles are meant to be informative a easy to understand and contain many real world stories in front of real judges to give people an understanding of how social security or insurance companies view cases.

If you have to "prepare" a lawyer you may have the wrong one. This should not be the case; they should be preparing your case. On my website you will find many articles to give you a head start on things to be thinking about that you can take to an attorney. In general, I would find an attorney who only practices disability law as this is a very specialized field. I would ask how often they win cases with your diagnosis, how many clients they have represented like you and whether they believe they can win in your area before your judges with your condition. Don't settle for an attorney that does not sound positive or does not want to go the extra yard to win your case because that is often what it takes, a lot of preparation and hard work. Also, almost all attorneys work on a contingency fee which is 25% or $5300 as a max, so don't settle for an attorney that is less experienced or simply lazy.

Angie: How best can we prepare our lawyers to represent us if they are not that familiar with invisible illnesses?

PCMoore: What is the primary reason for denial? What would you have to do to get approved right away? I've seen people approved within months and others who appeared much sicker wait for years for approval.

scott_davis: When people get approved is always a mystery. When I say we win 95% of the time that is at the end of the day, I don't know when cases will get approved. One thing I have seen since the Iraq war started is SSA has really been denying a lot more cases and on the cases they do approve before a hearing they often change the date for disability which costs the client money and saves SSA money. The best thing to do is consult with an attorney right away because it does not cost you anything to hire them and have them lay out a game plan from the start to include getting current medical records and opinions from doctors and lay people to support your case. Even then it has been tough over the past several years to win early on. The main thing you have to have is patience. If you have a good case and it is prepared well, you should eventually win.

horseladyjane: I'm so not happy with the firm and it's paralegal I'm using. I have 2 dire need letters in. They seemed happy to get my case. Now getting responses is like pulling teeth!

scott_davis: I would sit down with the attorney and talk with them about where you are with the case and what they plan to do in the short term to move your case forward. Remember what I said about SSA denying a lot of cases now. If you are not happy with the answers then you can fire them (I suggest a meeting first to clarify any problems) and then you can find another attorney by going to www.nosscr.org which is an organization of nationwide attorneys that do SSA disability work so you should get an experienced attorney.

horseladyjane: Would it be unwise to change attorney now?

scott_davis: I don't know enough about your situation to answer the question and it may be unethical for me to do so. I suggest you get with the attorney and express your concerns, if they are not willing to do that then you may have to take action. I am confident if you express your concerns the attorney should respond in a manner that is satisfactory to you, remember, as I always do, they are running a business and happy clients are a priority.

Lynnette: How long does it usually take to finalize a social security disability case? I started mine over two years ago, was declined, started an appeal, because of basically a "typo" had to start the appeal over (this is with lawyers working on the appeal) and last week the social security office called me and started my claim over from the beginning. I'm very confused. Meantime, I'm waiting on the Medicaid to come through to have a surgery which the longer I wait for, the more permanent damage is being done.

scott_davis: It is difficult to answer how long it takes, the shortest time is about 4 months, which does not occur often at this time for reasons stated earlier about the war, SSA would not say it has anything to do with the war but I wonder about the money we are spending over there. It is often taking 2 years now to get to a hearing if your claim is denied at the first two levels. One thing that is critical is to appeal every denial because 50% of the people never appeal and go before a judge. That may be why SSA is denying so many claims now. You need to hang in there and your situation sounds strange, I would get with an attorney to see if that is correct.

Shep: Scott, when I filed for disability I did most of my paperwork on line - then I downloaded and copied everything and sent it to every doctor I had within the past 8 years or so. Next, I went to my appointment at the SSI office and the first thing the lady said was 'wow, you are prepared!" The time on the internet would save me hours of time in their office, still I was there for about 6 long, stressful hours! Had I known in advance, I am not sure I would have done it -- however, I did get approved on the first try -- is there a true moral to that scenario??? Did my prep time help me?

scott_davis: Congrats on approval. Good claims will get approved it is a matter of when. Being prepared helps if you have all records, I usually only go back 12 months prior to when you became disabled, if you go back too far SSA says well you had all these same issues 8 years ago and you could work then...
You probably won because your medical records documented your diagnoses and limitations and you may have also been approved due to a psych. disorder which SSA likes a lot in chronic cases at the first two levels.

cj_Encourage: I asked for an attorney to represent me but they wouldn't until I had been refused by SSI. Is that a standard mode of operation?

scott_davis: That is something I hear often and I do not agree with that practice. I am not saying it is "wrong" I just don't think it is the best course of action. Your case starts when you stop working, not months later when you get denied. SSA does not represent you and is not looking for ways to approve claims. So I think you should get an attorney ASAP after you file or even before so you can develop a strategy out of the gate to try to get evidence before SSA that wins cases rather than waiting until later when you will get denied and have to go before a judge.

lrolf: How does suing a disability insurance company differ from SSD?

scott_davis: It is very different and not something that can be addressed in this forum. Suffice to say that SSA laws are much more favorable to people than federal law (ERISA) which governs insurance cases. In general, there are no bad faith damages or punitive damage claims against and insurance company so there is no real incentive to treat insured's fairly, that is why (along with the fact there are not many attorney who practice in the area) that you see a lot of bad stories coming from the ins companies. Many companies will force you to sue in order to get benefits. SSA claims are really easier to win because federal law in SSA cases puts more emphasis on what your doctors have to say along with your credibility.

Angie: In my case the specialty is in accident injury law, but I have since developed invisible illnesses. I think your resources will be very helpful even being outside of the US - Thank you, Scott

scott_davis: Thank you, remember that laws are different from state to state in the USA and obviously from one country to another, so I would use my information at www.scottdavispc.com as a starting point and then refine it to your situation by contacting a local attorney in your country.

goldy: What is the best approach if your condition has deteriorated since your initial filing (additional health problems) and is awaiting an ALJ hearing to be set?

scott_davis: There is an article on my website called "Winning your disability case in three words, frequency, severity and duration" it talks about how to document your medical condition and how to get the disabling symptoms and limitations in your medical records. The ALJ will be looking to see if your story at the hearing matches or is close to what is contained in your medical records, if it is then you should win as long as they are decent. You should be treating consistently with your doctors and doing the things they suggest even if you are not getting better. Because your records are the beginning and end of your case, without those it is very difficult to win invisible cases. However, again, I have won over 95% of the cases all over the country so it can and is often done if you prepare correctly, but it takes work, a game plan and persistence while you are waiting. Sometimes I tell clients there only job before the hearing to treat with doctors to we have good records so the doctors opinions I get before the hearing are supported in the records. Good question.

Connie: I'm on SSDI. How do I know when I will have to get approved again (sorry don't know correct term)?

scott_davis: SSA usually reviews cases every 3 years and they are pretty good about that time frame. Over 90% of the reviewed cases continue to get benefits so it is nothing to worry about if you have consistent care and do what I suggested in the prior answer.

sharon_stobbe: I lost my job because I have a disability. They won't let me have a chair. I have no money to get a lawyer. What can I do?

scott_davis: This is a bit outside my area of expertise, but I would contact the EEOC, which handles discrimination cases like that. I think you are probably out of luck though and I would spend my time trying to get another job.

patty123: Once on disability, how hard is the continuing review process - I'm in my 50's with continuing disability due to fibromyalgia and interstitial cystitis (bladder problem) and back problems. Just curious - in general.

scott_davis: I just answered a similar question, the issue is not so much the diagnosis but how good your medical records are and always having at least one doctor that will support your claim. The mistake many people make is not treating regularly after your claim has been approved. You have to see the doctor every time and realize that at some point an SSA bureaucrat or doctor is going to review your records for a review.

horseladyjane: I feel they (attny) are dragging their heels to up the ante on the % they get. Would it be wise to maybe change the wording but express this to them? The one thing I feel may be in my favor is the paralegals husband is an MD.

scott_davis: I just answered similar questions, look above in the scroll.

Carol: I was told I needed a' Functional Capacity Test,' and after that got it in two weeks.....Is that what you must do, are you finding for the Chronic illnesses?( I was ill many years, and no one would listen until I took the test)

scott_davis: You guys are giving me a workout with the typing. I do use functional capacity tests in insurance cases but not often in SSA cases. You need the test to state that you are unable to engage in sedentary work which should win your case no matter your age or whether it is SSA or an insurance case. For invisible cases you really need some of what we discussed, consistent care, a good solid diagnosis that cannot be disputed, documentation of symptoms and limitations in terms of severity and problems you have not only with working every day but simply functioning around the house. You need the support of doctors who are willing to complete narrative letters and forms stating your are unable to work and I also like to use affidavits from lay witnesses who know you (family, friends, co-workers) to corroborate your story. This type of evidence is overwhelming and usually too much for even a bad or cynical judge to ignore.

Clarisse: Do you know of someone or a webpage for us Canadians to check out?

scott_davis: I am sorry I do not.

Lynnette: I have an attorney (paralegals) and have been at the "hearing stage" for over 6 months now. Every time I call them to stress the urgency of my situation they say that "all their cases are urgent" I'm afraid, however, that getting a new attorney at this point will put me back to square one. Any advice?

scott_davis: I don't think you should switch attorneys because 6 months is not a long time to wait at SSA for a hearing. You may want to see if you can get your case expedited due to tremendous financial need, but that is tough to do because everyone has a problem. I think what the attorney is saying is that everyone has a financial problem and is in the same boat. You could call your attorney first, then contact your congressperson to have them check on your status, that may get your file thrown further toward a hearing. Most people wait 12 months to get a hearing and in many parts of the country you can wait 18 months or longer. SSA is currently at a record backlog of cases so everyone is dealing with this. Hang in there.

p.j: Should I even pursue SSI or disability, which doc says yes do, though seems like law says no- because I quit working 10 years ago when got sick, and relied on husband's income. Now it would help to get it.

scott_davis: You may not be eligible for SSA if you last worked 10 years ago and you are married. You may have fallen in to the trap I call the "stay at home mom" problem who worked for many years, is insured for disability then stays at home with the kids and then loses her insurance after 5 years of being at home. SSA only looks at the last 10 years before you became disabled to determine if you are eligible. There is information on my website at www.scottdavispc.com addressing this issue. You need to contact a local SSA office; I would go into the office rather than call the 800 number as their info is not reliable.

goldy: Follow up to your estimate of 2 years waiting if denied at 2 levels: How is this affecting the pilot states that have eliminated the reconsideration phase?

scott_davis: I don't know the answer to that, but Reconsideration is a complete waste of time. SSA's stats tell us that over 80% of the time claims are denied again. I try to get my clients claims denied as soon as possible at Reconsideration so we can file for a hearing. This raises a good point of what I discussed earlier, the best shot you have to win early on is at the first level of review which is why you should get an attorney right after or before you file. By the way, over 50% of the time people win before and ALJ, so persistence is critical, that is really the best shot you have at winning is before a judge.

sheep: My LTD cut me off after two years, and I now have a lawyer working on my appeal. I am still waiting on my social security application with a second lawyer. Do I need to pay back the money my LTD carrier has asked me if I get social security? I don't see why if they cut me off!!!!

scott_davis: By the way, I need to tell everyone that I am only representing clients in Arizona and Nevada; I no longer represent clients all over the country. My kids are older (as am I) and I got tired of flying 100K miles per year.

Bernwoodshanover: I'm on SSI now, but only because everybody dragged their feet long enough that the five year work window closed and even the judge wondered what was going on and when I tried to explain, my paralegal 'shushed' me. Should I have spoken up? Is there anything a person can do after the fact?

scott_davis: On the last question, the insurance policy between you and your ins company will dictate whether you have to pay them back from the SSA proceeds. In general, if you got your disability insurance through an employer in the USA then almost certainly there will be a clause in the policy requiring you to pay it back.

As for the other question about the five year work issue, you should have explained it to the judge because there are usually interested in people's work history especially if you have an invisible illness because they have problems measuring pain, fatigue, etc so they look at your work record. I would contact a local SSA disability attorney and have them review the case to see if you can file a second claim or to see if you are eligible for SSI.

PCMoore: Can you get SSA and private LTD payments both?

scott_davis: Yes, you would have two separate claims and you can get either, neither or both at the same time. One important point is people have to file a claim for SSA disability benefits otherwise you will lose your insurance at SSA just like I addressed a couple of questions earlier with the mom who last worked more than 5 years ago. Most ins companies will require you to file a claim for SSA if they are paying you first but this is what you want to do because you will get SSA and an insurance co payment and also Medicare health ins. Also, you will protect your retirement record. It is a benefit to being found disabled by SSA so they will not post all the years of zeros on your earnings records for the years you did not work due to disability. If you do not file an SSA disability claim they will add in all the zeroes and this will reduce your retirement benefit.

sher: To clarify, you only accept cases from two states now?

scott_davis: Yes, Arizona and Nevada, thanks for asking. The next question appears to be the last. That is good because I may be filing a claim for carpal tunnel...just joking.

Lori: Can they take away my social security if I live with another disabled person who receives the same check?

scott_davis: On a side note, the questions tonight are excellent and many of them are addressed at my website in many or all of the articles I have written at www.scottdavispc.com or www.nvdisability.com or www.azdisability.com.

To answer your question is not easy I would need to know more. What I would suggest you do is visit a local SSA office and sit down with them to find out the answers. Remember as I said earlier, I don't trust the people at the 800 number so I always tell people to go into a local office to get answers. It is a pain but at least you know they answer should be somewhat accurate. Thank you so much for attending tonight, it looks like we had a great turnout. Great questions and conversation.

p.j: After seeing your answer to sheps - I didn't think about asking about psych disorder to go along with the chronic illness physical? After 10 years of chronic physical illness, the psych disorder might come into play?

scott_davis: SSA is always looking at psych disorders and many judges will only approve chronic cases such as Multiple Chemical Sensitivities or FMS or CFS on psych disorders. Always use them, there is an article on my site about psych dis.

cj_Encourage: The SSI lady called and said years ago if I didn't continue with my applying for SSI that my file would be closed and I would no longer be able to open my case back up. Is this true?

scott_davis: It probably is true I would check with them ASAP to see where you are at in terms of filing a claim.

patty123: Most doctors I've been too do not keep accurate records for Soc Sec. purposes - nor do they want to take the time even when I explain the need - will a patient's documentation be enough if the doctor's notes are lacking?

scott_davis: Thank you everyone for a great seminar, I have to run and get ready for hearings tomorrow. God bless everyone and I will be happy to return whenever you want me back.

Debbie: Our hour is over. Thank you Scott for an encouraging, informative and helpful time. We really appreciate you taking the time to answer all our questions and all the typing involved!

Thank you Scott. And our apologies to anyone who didn't get their questions answered - but we ran out of time. Scott says we'll do it again some time