YOUR DISABILITY HEARING
Prepare
Your attorney will meet with you before your hearing and go over your case in great detail. As a represented person you should feel very confident before the day of your hearing. YOU WILL HOWEVER FEEL NERVOUS-IT IS NATURAL.
Arrive Early
Unless your attorney asks you to be at the hearing office at a specific time, arrive for your hearing about a half an hour early. Any earlier is not necessary no matter what your Notice of Hearing may say about coming early to review your file. Your lawyer has already reviewed your hearing exhibit file so it is not necessary for you to review it although you may if you want to. Disability hearings usually start on time--so whatever you do, don't be late. Judges hate it when people are late for something so important.
Don't Talk About Your Case
When you come for your hearing, remember, Social Security hearings are serious business. Don't make jokes. Indeed, don't even talk about your case before or after your hearing in the waiting room, in the hallway, in the elevator or anywhere else where a stranger can overhear. A Social Security employee may misinterpret what you say and get the wrong impression about you. There will be a lot of Social Security employees in the building.
The Hearing Room
A Social Security hearing room is nothing more than a conference room. It may have a few official trappings such as the seal of the Department of Health and Human Services or an American flag. Hearing rooms are always equipped with a conference table. The hearing rooms often have a desk for the judge which sits on a small riser so it's slightly above the level of the conference table where you will sit. There will be computers and monitors.
The Recording
The most important equipment in a hearing room is the electronic recording equipment. It will be used to record your hearing. Because your hearing will be recorded, it is important for you to speak clearly when you answer questions. The microphones are very sensitive so that they will pick up your testimony from anywhere in the room if you speak loud enough for the judge to hear you. However, shaking your head won't do. Neither will pointing at a part of your body without stating out loud what part of your body you are pointing at. Also, “uh huh” and “huh uh” answers do not transcribe as well as yes and no answers. Try to say “yes” and “no” if you can.
Persons Present in the Hearing Room
You will be seated at the conference table along with your attorney. Also seated at the conference table will be the judge's assistant who records the proceedings. Under some circumstances the judge may call a vocational witness or a doctor to testify. If so, they will be seated at the conference table, too.
You are allowed to bring witnesses into the hearing room. Your attorney will tell you if there are witnesses needed. There is no jury and no observers. The hearing is private. Anyone present other than the judge, the judge's staff and witnesses called by the judge must have your permission and the judge’s. Do not bring in any observers.
Social Security Hearings are Informal
Social Security hearings are much less formal than court hearings. They are nothing like you see on television or the movies. Social Security hearings were designed so that they would not be a threatening experience. The Social Security Administration recognizes that if you can relax as much as possible you will be the best witness for yourself. It's okay to let yourself be yourself.
Although this is an informal hearing, there are a couple of procedures which are necessary that you follow. First, you and all witnesses will testify under oath. Second, it is important when you are testifying that you not ask anyone else in the room to help you answer questions and that your witnesses or friends do not chime in to help you testify. Only one person is allowed to testify at a time.
The Administrative Law Judge
The person who presides in a Social Security hearing is an Administrative Law Judge (ALJ). Although one is not expected to stand up when the judge comes into the room, the Social Security judge is entitled to the same sort of respect that you would pay to a court judge.
The judge's job is to issue an independent decision which is not influenced by the fact that your case was denied at the time of your initial application and on reconsideration. In fact, judges do issue independent decisions, with more than half of their decisions nationwide being in favor of the claimant. These are the best odds of winning at any step in the entire Social Security appeals system.
The informal Social Security hearing is not what we call an "adversarial" hearing. That is, there is no lawyer on the other side who is going to cross-examine you. Judges usually do not "cross-examine" a claimant. The judge is not your opponent. The judge's job is to find out the facts. A judge therefore can ask you questions.
Many people, by the time they get to a hearing before an administrative law judge, are angry with the Social Security system. Their applications for benefits have been denied once and in some states twice, often without any logical reason given for the denial. The system is confusing, cumbersome, time-consuming, and frustrating.
But, it is important not to take your anger out on the judge. The judge did not create this system. The judge is not responsible for the problems that you have had with the system. Since the judge probably already knows all of the problems with the Social Security appeals system, you do not need to explain these problems. It also isn’t helpful to ask the judge any questions about your case. For example, don't ask, "Why have I been denied?" "Why has it taken me so long to have a hearing?" It is best to focus on the facts of your case, to give the judge the best possible reasons to find you disabled.
The only time you should ask the judge a question is when you do not understand what is being asked of you. Judges and lawyers sometimes ask simple questions in complicated ways. This is a shortcoming of the legal profession. Don't be intimidated by it. If you're not sure you understand a question, don't be embarrassed to ask politely for an explanation.
The best way to treat the judge is with the courtesy and candor that you would show an old friend whom you haven't seen for several years that you want to bring up to date about all of your problems. In other words, it's okay for you to talk to the judge "regular." You do not have to use any special highfalutin’ medical or legal words. In fact, it's much better if you don't try to use such terminology. Just talk to the judge the same way you would talk to an old friend.
The Order in Which Things Happen at the Hearing
Judges usually begin disability hearings by reciting the "case history" of your case and stating the "issues" to be decided. The judge takes care of swearing you in and offering exhibits into evidence. Judges often state what you have to prove in your case - but Judges seldom give a clear and simple explanation. They usually say that in order to be found disabled you must be "unable to perform substantial gainful activity which exists in significant numbers in the economy, considering your age, education and work experience." When they say it, it almost sounds like you've got to be bedridden to get disability benefits - but, as will be explained in more detail later, this isn't true.
The judge may question you first. And when the judge is done, the judge will give your lawyer a chance to ask you some questions. Occasionally, if a claimant is well prepared to testify, the lawyer doesn’t have to ask any questions at all.
Some judges, however, expect lawyers to handle most of the questioning. If so, answer questions asked by your lawyer the same way you'd answer them if a stranger were the one asking the questions. Sometimes a claimant may give less than complete answers when his or her lawyer asks questions, because the claimant thinks that the lawyer knows a lot about the case already. So, it is important to keep in mind that the judge, who will decide your case, doesn't know the answers until you say them. Although the judge probably will read your file before the hearing, when you're testifying, it is best to assume that the judge knows nothing about your case. Plan on explaining everything.
When you're done testifying, your lawyer will be allowed to question any witnesses you've brought to the hearing.
After your witness's testimony, any doctor or vocational expert called by the judge will testify.
At the end of the hearing some judges will ask you if you have anything more to say. It's best if you don't try to argue your case at this point - let your lawyer do that. Most judges will give a lawyer the opportunity to make a closing argument either at the end of the hearing or to be submitted in writing.
Most judges won't tell you if you've won, although a few will. Even if you're told you've won, the judge still must write a decision which will be mailed to you with a copy to your lawyer. Sometimes it takes quite awhile for the decision to come out.
What to Wear
A lot of people ask what to wear, whether they should dress up. You don’t need to dress up. You don’t need to wear the same clothes that you would wear to a wedding. This is an informal hearing. You may wear whatever makes you comfortable. Do not wear excessive makeup, jewelry or extreme fashions. If you have tattoos cover them with clothing or bandages as we have no idea how the judge feels about them. Be careful with clothing that advertises anything. Take into consideration that if you wear an alcohol related tee-shirt and the judge’s daughter was killed by a drunk driver, he may hold it against you. Be bland or neutral in appearance
Testify Truthfully
The most important thing about a Social Security hearing is not what you wear. It is what you say. It is whether or not you are telling the truth.
Tell the truth. When the judge asks a question, don't try to figure out why the judge is asking that particular question or whether your answer will help or hurt your case. Be candid about your strengths as well as about your limitations. The best way to lose a good case is for the judge to think that you’re not telling the truth. So, testify truthfully.
And, don't do any play acting for the judge. That is, don't pretend to cry or be in more pain than you are. On the other hand, you need not suffer silently or minimize your problems when you tell the judge how you feel. If you need to take a break from the hearing, ask the judge for permission. If you are uncomfortable sitting and it would help to stand up for awhile, you may do so and you should not be embarrassed about it.
Tell Your Story
This will be your chance to tell the judge everything we want the judge to know about why your condition prevents you from holding down a job.
Many people think that since they are dealing with the government that they should keep their mouth shut, give the shortest possible answer and not volunteer anything. Although this is usually a good approach when the government is trying to do something to you, the opposite is true when you are asking the government to do something for you. You need to provide enough facts, details, and explanation in your testimony to make it obvious to the judge that you are disabled.
Approximating Dates
If you are asked when something happened, if possible, the judge would appreciate having the precise date. But if you don’t remember the exact date, don’t worry. Few people can remember precise dates for events in their lives. If you don’t remember the exact date, say so. Then, do your best to give an approximate date, or a month and year, or a season and year, or, if you cannot remember more accurately, just the year. Getting dates wrong is something that all of us, including the judge, do from time to time. Some people are worse than others with dates. The judge won’t think you’re being untruthful if it turns out that a date is wrong.
How the Judge Determines Disability
It is important that you understand some basic points about how the administrative law judge goes about determining whether someone is disabled. This process is complicated and technical, and it doesn't necessarily involve common sense. For example, most people think that if they cannot get a job because of their medical problems, this must prove that they are disabled. But, as we shall see, inability to get a job proves nothing.
Disability determination is what we call a "hypothetical" determination. It has very little to do with the real world. It has nothing to do with the fact that employers won't hire you because of your medical problems. The Social Security Administration looks only at whether you are capable of doing jobs, not whether you'd be hired. Thus, you may have to prove that you are unable to do jobs that you would never be hired for in a million years.
In some cases, the medical findings about your condition alone will cause the judge to find you disabled. In other cases, the majority of cases, we usually have to prove two things. First, we have to prove that your medical impairments prevent you from performing any job you've done in the past fifteen years. Second, we have to prove that there aren't very many other jobs you are capable of doing considering your age, education and work experience.
Think about all the jobs you've had in the past 15 years, and pick out the easiest one. We have to prove that you cannot do that easiest job - we have to prove this even if we're dead certain you'd never be hired for that job again; and we have to prove it even if the company where you worked no longer exists or if the job is not available for some other reason.
Proving the second thing - that considering your age, education and work experience you're unable to do very many other jobs - is even more complicated and opposed to common sense. In many cases we have to prove that you're incapable of doing jobs that we know you'd never actually be hired for.
However, we don't need to make proof of disability more difficult that it really is. A lot of people have heard the language "totally and permanently disabled." This phrase, which comes from worker's compensation cases, does not apply in Social Security disability and SSI disability cases.
First, for Social Security, you don't have to be "permanently" disabled. You only have to be disabled for 12 months.
Second, although you have to be totally disabled in the sense that you are unable to perform jobs existing in significant numbers in the economy, this doesn't mean that you have to be unable to do anything. In fact, very few people who go in front of Administrative Law Judges are unable to do anything at all.
Everyone Can Do Something
Think about the job of bridge tender on a not very busy waterway. The bridge tender has a recliner chair in his room at the bridge. He sits in his recliner and when a boat comes along, a few times per hour, he flips a switch to raise the bridge. He is allowed to stand or sit or lie down as he chooses. Most claimants who go to hearings in front of administrative law judges are able to do the bridge tender job. But that doesn't mean they are not disabled. It just means that virtually everyone can do something. There is some sort of job for almost everyone.
This is important because one way to determine disability is to start by trying to figure out what you can do. Once we figure that out, we can determine whether or not jobs within your capacity exist in significant numbers in the economy, considering your age, education and work experience. We do that either by looking at a set of rules or, in really complicated cases; we have to ask some questions of a vocational expert.
Rules for Determining Disability
The rules for determining disability apply most directly to impairments which limit your physical ability to stand or sit or walk or lift or bend or work with your hands. Mental impairments are a bit more complicated.
If you are unable to do certain kinds of manual labor, whether because of a back problem or a heart condition or breathing problem or some other medical problem, your lawyer will be able to look at the rules and figure out just what you've got to prove. (Don’t get confused here - these rules apply only after we’ve proven that you cannot do any of the jobs you’ve had in the past fifteen years.) Here are some examples:
If you are under age 50, the general rule is that you've got to prove that you can't do a desk job. You've got to prove this even though you probably would never be hired for a desk job.
If you are age 50 through 54, the general rule is that you have to prove that you cannot do light work. That is, work involving being on your feet most of the day and lifting up to about 20 pounds. Thus, even though you might still be able to do a sit-down job, a desk job, you can still be found disabled.
If you are age 55 or older, it gets even easier. The general rule is that you have to prove that you cannot do "medium" work, that is, work involving being on your feet for most of the day, frequently lifting 25 pounds and occasionally up to 50 pounds. Thus, you can even be capable of doing light work and still be found disabled.
As you can see, we're not only going to prove what you can't do, we're also going to prove what you can do. We're going to do that because it's the truth and because in most cases the judges just won't accept any sort of "I can't do anything" explanation for why you're disabled.
These issues can get complicated when you've had jobs in the past where you've learned a lot of skills. The judge is going to want to know about your work skills. You are going to have to be able to explain them to him.
How do we go about proving all of this? We do it through your testimony in response to questions from the judge or your lawyer at the hearing. Although your lawyer will remind you if you forget something, it's best if you can answer all questions thoroughly so that it does not look like your lawyer is prodding you or putting words in your mouth.
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