September, 2011: Ensure Your Lawyer Knows What They’re Doing: the Consequences of Inept Counsel can be Devastating

The success stories for this month involve two clients, Ronald and James, who have received favorable decisions at the hearing level prior to the need to go to hearing.

Ronald's case is an especially rewarding case given what we have been able to accomplish for his family and him. When Ronald came to me, he was represented by other counsel following a serious motor vehicle accident in September, 2008 (which ultimately required a serious of three (3) surgical procedures, and resulted in what was a fusion of 80% of his lumber and thoracic spine). Ronald had one of the most spectacular work histories I have come across: literally, a 30 year work history from the age of 16 until the time of his accident (at the age of 46) with no interruption. He had worked for the family fish market business for the majority of this time and showed that he was no stranger to hard work. Unfortunately, when Ronald came to my office for a second opinion, I could see that he was receiving poor legal advice (and that his case had likely been denied at the initial level because of poor stewardship of his case). Ronald informed me that while he had gone back to work on an irregular schedule for only a few months, his family had continued to pay him his full salary from the time of his motor vehicle accident until July, 2009 when he applied for benefits. His attorney did not ask him whether his earnings were earned; he simply went along with Social Security's use of an alleged onset date of July, 2009 (when his sporadic work with his family ended). He was subsequently denied benefits as Social Security thought he was only disabled from gainful employment for a few months at the time of their decision (instead of understanding that he was really disabled for a year or longer, as their rules require). As it is never my intention or wish to take over a case from another lawyer when they are taking care of their client's needs, it is likewise important that I step in when I see that the client's attorney is not doing their job. Consequently, I asked that Ronald call his lawyer back and explain that it was my counsel that he should be using the onset date of September, 2008 as he had not undertaken gainful employment since that time (that is to say, his work with his family for a few months was subsidized given how inconsistent it was, and, at worst, it was an unsuccessful work attempt as he stopped after a few months): the fact that he was paid his full wage was not the issue. Rather, the issue was whether he was earning a gainful wage. The money his family paid him was quite similar to an employer paying an employee disability leave pay. Unfortunately, the attorney's response was that it was ridiculous to think that he could double dip: that is, be paid by his family and be paid by Social Security. In fact this was a terribly inept analysis. Ronald was indeed entitled to benefits for both periods: not only was his former attorney promoting a denial, but also he was selling short Ronald's claim (as he was entitled to an additional 9 months of benefits, which for Ronald meant more than $20,000.00).

And so, Ronald was denied on his initial claim. Unfortunately, when denied initially in Massachusetts, there is a very strong likelihood that one will be denied on reconsideration. Indeed, a few months later, a denial on reconsideration came to pass. It thus became necessary to request a hearing before the Boston, MA Office of Disability Adjudication and Review. We had Ronald undertake work activity reports (forms provided by the Social Security Administration which address the extent to which work is gainful). Likewise, we were able to prevail on Ronald's physical therapist and, ultimately, his consulting surgeon, to address a Physical Residual Functional Capacity Questionnaire and a Listing 1.04 form. These documents made rather clear how disabled Ronald had remained following his three back surgeries. Following the surgeon's endorsement as to the extent of his functional limitations, I wrote an argument brief in support of Ronald's claim and I am happy to note that the Boston Office of Disability Adjudication of Review has provided a fully favorable on the record decision (meaning that Ronald will not have to go to hearing). This case reminds me that, unfortunately, not all attorneys are as knowledgeable as they should be, and that the wrong choice for an attorney can have terrible consequences. Fortunately, Ronald made a good decision to switch counsel before irreparable harm was done to his claim (which, for his family, is critical to their future survival as a family, as it remains clear he will need these benefits for years to come).

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