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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26757
Experience:  Began practicing law in 1992
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Hello, my question is can I sue my SSD lawyer for malpractice?

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Hello, my question is can I sue my SSD lawyer for malpractice? I was disabled back in 2006 and went back to work 2007. I became and re-filed for SSD through my attorney May 6th 2012. I was eligible for what is called EXR "Expedited Reinstatement" because I stopped collecting disability payments due to work income. Definition of EXR is- ''Provisional benefits that can be paid when you request EXR. It will include cash payments and Medicare/Medicaid coverage. They usually do not have to be paid back if we deny your request. Provisional payments are paid for up to six months. My lawyer did not tell me I was eligible for this. I found out through my own research. My lawyer filed a new application that TOOK a whole year to get a decision in which I was denied benefits this time. Regardless, I was eligible as everyone else is to collect the first 6 months ands have a sped up case resolution. I was financially hurt by this. As "experts" in SSD I trusted in them to handle my case and take care of me. When I brought up EXR to my lawyer, they said that "they should have caught it and made a mistake" AND "they did not know what EXR was" AND "they did not know I stopped collecting benefits due to working back in 2007, they ASSUMED I had a closed case. In my opinion....they did not act properly in my best interest....they were negligent by making this mistake, because if I was denied 6 months ago rather than waiting a year for a denial by SSD I could have been looking for some kind of work because I would have no choice. Lastly, I believe this would count as me being financially hurt by this mistake. I don't think I will be entitled to that 6 month safety net pay I was SUPPOSED to get now because the time to file EXR is obviously overdue and I have been denied. Do you think I have a case? Thank you
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

SSD lawyers can certainly be sued for malpractice.

Customer:

ok thanks

JD 1992 :

Were you eventually approved for reinstatement on SSD through these lawyers?

Customer:

I don't understand that question

Customer:

They were unaware I was even eligible for reinstatement, they filed a whole new claim which I had to wait a year to just recently get a decision and I was denied benefits.

Customer:

However, when I first filed...I was entitled to receive SSD payments right away up to 6 months

Customer:

They did not catch this (as they admitted to) and I was poor for a year

JD 1992 :

So you were ultimately denied benefits, correct?

Customer:

ultimately yes. But my RCAL (assesible living for the disabled) says im still am entitled to that 6 months EXR like everyone else. even if I was denied after the 6 months, the money does not have to be paid back

Customer:

I would trust my lawyer to let me know this, I didn't know what EXR even was until my counselor told me

Customer:

instead of filing EXR they filed a brand new case without even checking to see if I was eligible for reinstatement

Customer:

in which, I was, and my lawyer admits to making that mistake

Customer:

all in all I am out that 6000k because of this

Customer:

I shouldn't have to tell them what im eligible for, I hired them to take care of me and my case right?

JD 1992 :

I think you are right that they should have known and filed for the EXR. However, I do nto believe EXR benefits are automatic, they can still be rejected.

JD 1992 :

In order to have a viable malpractice case you will have to prove that you would have been granted the benefits.

Customer:

I don't know what would make me ineligible. All the ssd sites says is...If your benefits ended because you worked and had earnings, you can request that your benefits start again without having to complete a new application. While we determine whether you can get benefits again, we can give you provisional (temporary) benefits for up to 6 months.

Customer:

Now I get they don't have to give me that. BUT, how would I know, my lawyer didn't even check

Customer:

they had a duty to do so

JD 1992 :

They did have a duty to do so. A claim for malpractice involves two parts. The first is that they did something wrong or didn't do something they should have and I think that is apparent and you would win on that point.

JD 1992 :

However, the second part is damages. You have to prove that you were harmed in some way by their failure to do the act. In this case, you would have to prove that you would have received the benefits. If you would have received the benefits, then you are harmed by however much they would have been. However, if you would have been denied and not received the benefits, then even though they should have applied, it actually made no monetary difference.

JD 1992 :

In a malpractice lawsuit the burden is on you to prove both parts, malpractice and damages.

Customer:

right. So I would have to find out on my own if I would have gotten the EXR benefits?

Customer:

because I did have a resource counselor and a Disability Resource Coordinator tell me I would have.

JD 1992 :

Yes, although you may want to go ahead and talk to a legal malpractice lawyer and see if they know someone who can help prove you would have gotten the benefits.

JD 1992 :

You have to have someone who will get on the witness stand and swear under oath that you would have gotten the benefits.

Customer:

ok. I just wanted to know if a chance was there. Because I really do feel like they didn't care about my case as much as they did the first time. I feel brushed off

Customer:

ok

JD 1992 :

One of the most common things you see as an attorney is that someone comes in and gives you witnesses who say they support the case but once they get sworn in they aren't willing to commit.

JD 1992 :

There is definitely a chance, it just isn't as obvious as it ought to be in this case.

Customer:

ok. You have pointed me in the right direction however. Thank you for your advice

JD 1992 :

You're very welcome and I do wish you the best. If you remember, drop back by and let me know what happens.

JD 1992 :

Also, please don't forget to leave a Positive Rating so I get credit for my work.

JD 1992 :

If you specifically want me to provide information for you on a future question just put “FOR JD 1992” in the subject line and I will pick up as soon as I see it.

JD 1992 :

I'll exit now to assist others.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26757
Experience: Began practicing law in 1992
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