Do I need a lawyer to reapply for disability to get benefits going back to my original claim?

Question:

I have been battling chronic migraines, chronic daily headaches, depression & anxiety for over a decade. About 18 months ago I finally applied for disability benefits. I was denied. Due to my conditions and frustration, I failed to appeal my denial.

I know it's too late to appeal, so can I reapply or do I need to get a lawyer? If I can reapply, can I still request benefits from almost two years ago, when I initially applied?

Answer:

Yes, you can reapply for disability benefits from Social Security by filing a new claim. You can also request that your original claim be reopened when you file the new claim. If you're successful, Social Security will pay benefits back to the date of your original application, or even up to a year before your original application date if you can prove your disability started that long ago.

You didn't say when you received the denial from Social Security, but if it was less than 12 months ago, you should have an easy time reopening your claim. You do have to claim that the same medical conditions (or related ones) are disabling and that your disability started before the date of your first claim. In your case, it sounds like that won't be a problem. But make sure you have medical records that show you suffered from these conditions several years ago and that you've also been seeing a psychiatrist or neurologist recently.

If you received the denial more than a year ago, you'll have a harder time reopening the claim. You'll have to show that you have "new and material" evidence about the claim (meaning the evidence wasn't considered in the prior claim and it would have meant an approval of benefits), or that that the prior decision reflects an obvious error. This isn't an easy standard to meet, and if you request a claim be reopened and the request is denied, you can't appeal the decision.

So if you were denied over 12 months ago, I would ask a disability lawyer to help you reopen your original application. A disability lawyer will know how to request the prior claim be reopened and how to argue why your evidence is new and material or why there was a clear error in the initial decision. An attorney can also make sure your new claim follows the reopening rules regarding dates and relevance. Of course, if the lawyer doesn't think your case is likely to win or get reopened, that will save you the time and headache it will take to file a new claim and wait for an answer. In other words, it's always a good idea to at least do a free consultation with a lawyer. To set up a consultation, you can fill out Nolo's case evaluation form and a disability lawyer from your area will follow up with you.