By Christopher J. Grover, Esq.
The original article appeared in The Bar Association of Erie County Bulletin
Is counseling a client to potentially forego a sizable monetary benefit ever the “right” thing to do? Sometimes, if you are talking about a Social Security Disability (SSD) claim, it is.
Jason contacted my firm in early 2019 to initiate a Social Security Disability (SSD) claim. He had recently stopped working as an executive chef after 16 years with the same company due to several chronic medical conditions. He got to the point where managing his symptoms was significantly interfering with his performance, and just showing up to work was becoming detrimental to his health. After several months away from work, he quickly realized he wasn’t getting better and wouldn’t be able to go back.
Jason and his wife had both worked full-time, owned their home, and were raising a teenager. As Jason says, his wife was “magic” at making ends meet when they lost his salary, but they were still struggling financially and found it difficult to even keep up with the mortgage payments. He was also treating with multiple medical specialists (gastroenterologist, cardiologist, orthopedist, chiropractor, physiatrist, psychiatrist, and rheumatologist) and had cut back on some much-needed treatments, because he could no longer afford the copays.
I was not surprised when Jason’s SSD application was denied as the vast majority are denied at the initial level and require a hearing with an Administrative Law Judge (ALJ). Jason’s hearing was held almost a year and a half after the application had been filed, and the ALJ had access to all of the specialist’s treatment notes detailing his declining medical condition. As is sometimes the case, the hearing did not go particularly well – the ALJ had seemingly made up his mind before we walked in the door. The unfavorable decision was issued less than two weeks after the hearing.
We knew Jason was sick and was not going back to work at any time in the foreseeable future, so the decision was made to appeal his case to Social Security’s internal Appeals Council where it sat for another year before being denied, yet again. Jason and his wife faced a difficult choice between filing another appeal (to U.S. District Court) or starting over with a new application. It had been three years since he had last worked, and the appeal to U.S. District Court could take another year and a half to two years. If the District Court decided to remand his case, it would be sent back and heard again by the same ALJ who previously denied him. Yet, if we could convince the ALJ that Jason was – in fact – disabled, he would be entitled to benefits dating back to 2018. Filing a new application, on the other hand, would be quicker than appealing and would likely put him in front of a new ALJ, but he would lose out on approximately $45,000 in back benefits because the prior decision would become final. My clients often ask me what they should do in these situations. I always tell them that I can only give them their options, but ultimately, the decision is theirs. In Jason’s case, I asked him and his wife what was more important: the preservation of $45,000 in back benefits which they might not see for another three years, or getting money coming in on a monthly basis as soon as possible?
“My wife and I had long conversations about the information given to us,” Jason said. “We had already gone through almost four years of not knowing how our family’s life was going to end up. Both mentally and financially, we needed to take the option that would resolve our situation the most quickly.”
Jason ultimately felt appearing before the same ALJ and asking him to reverse a decision he had previously made might be more difficult than pursuing a new claim — “I learned a lot by going through the process the first time,” Jason said. “In fact, I had a panic attack during the first hearing. It was very difficult.” So, we ultimately decided to forego the appeal and start over with a new application.
Seventeen months after filing the second application, Jason had another hearing in front of an ALJ who thoroughly examined Jason’s complex medical file and ultimately approved his claim for benefits. The back benefit, (approximately $70,000) was not as large as it could have potentially been if we had appealed to the original ALJ because more time would have elapsed, but the monthly benefit is now providing Jason’s family with a bit more financial security than they have had in several years.
After reviewing other cases during that timeframe, it is very likely we would still be waiting for the District Court decision or preparing to go back in front of the same ALJ who already denied the claim. Then we would have to wait for the decision and the potential for further appeals.
Ultimately, Jason and his wife felt their decision to file a new claim was the right thing to do. “You have to have a lot of faith and trust in your lawyer. What I went through the first time around taught me a lot. I had so much anxiety on top of dealing with my medical issues and my wife and I realized the best way to avoid that was to trust the experience of our law firm.”
The old saying, “time is money,” doesn’t always make sense for SSD cases. The amount of money becomes less important the longer my clients are forced to wait. Even a $100,000 back benefit doesn’t mean as much if you wait five years (or more) to get it and lose your family’s home along the way. There’s a point where the best option is the one that gets money coming in as fast as possible where you can obtain a regular monthly income, stay in your home, put food on the table, and get the medical care you need. For some of my clients, decreasing the time they have to wait is more important than maximizing the amount of money they will ultimately receive.