What Actually Happens at a
Social Security Disability Hearing?
by Jonathan Ginsberg, Attorney - Atlanta, Georgia
You have waited a year or longer. The big day is finally here. Your Social Security hearing is tomorrow. What is going to happen? Who will be there? What does the Courtroom look like? Will you be asked a lot of questions?
Your hearing is your best chance for winning disability benefits. Prior to the hearing, your case was evaluated by a State Agency Adjudicator - a government employee who you have never met and whose evaluation of your case was based on your medical records only. And since your doctor’s reports did not contain the “magic language” that Adjudicators are looking for, your case was denied. For more information about the magic language that Adjudicators look for, please click on the link.
At a hearing, you will have the opportunity to tell your story to an experienced Administrative Law Judge. Your Judge is not bound by any of the findings made by the State Agency Adjudicator. In other words, the Judge will look at your case with a fresh pair of eyes and he or she will have the chance to meet you and look you over. While it is normal for you to be nervous, you should realize that most Judges want to make a fair decision and that you will be treated with dignity and respect. It is important, however, to know what to expect.
What does the Social Security Disability
Hearing Room Look Like?
The hearing room in a Social Security case is much different than traditional courtrooms you may have seen live or on TV. Your hearing room will be small and informal. The hearing will be held around a conference table. You will also notice an audio tape recorder and microphones used to tape the hearing. Some hearing assistants will use a laptop computer to record the hearing so you may not see a tape recorder. Unlike regular court cases, Social Security hearings are not open to the public - therefore, there are no seats for spectators. Most people like the small, informal setting. This type of set-up should help you relax and establish a dialog with the judge.
In some jurisdictions, Social Security used video-conferencing equipment to hold a video hearing. In a video hearing, you and your lawyer will appear at your local ODAR (Office of Disability and Review) office while the judge may be hundreds or thousands of miles away in a different State. Expert witnesses - the vocational witness and/or the medical witness may be in your hearing office or they may be with the judge.
Some disability lawyers have no problem with a video hearing while othe lawyers do not like them at all. The biggest issue - your lawyer most likely will not know anything about the judge and, thus, cannot prepare you for the questions and procedures of your particular judge. With the advent of video hearings, the national organizations that support claimant’s representatives have taken on new importance. More and more, lawyers are using their contacts and relationships within these organizations to research the judges and to better prepare for hearings.
Who Will Be at Your Social Security Disability Hearing?
The participants at a hearing will be the Judge, a hearing assistant (who operates the tape machine or computer), you, your lawyer and possible one or more expert witnesses.
Why Will Expert Witnesses be Present
at my Disability Hearing?
Social Security Judges use expert witnesses to help them better understand the issues in your case. Expert witnesses are not there to hurt you or to help you. Expert witnesses come from a panel of experts selected by Social Security. When the Judge decides to call an expert witness, he cannot ask for a particular witness - instead, a member of the panel is assigned randomly.
The Vocational Expert
In most cases, the Judge will call a Vocational Expert (also called a VE) as a witness. The VE may be a job placement professional, a professor, or a vocational rehab counselor. The VE’s job is to classify your past work and describe for the judge the skill level of your past work (unskilled, semi-skilled or skilled) along with the exertional level called for in each of these jobs (sedentary/sit-down, light, medium, or heavy). The judge needs this information to determine whether your claimed impairment would prevent you from returning to your past work and whether you have acquired any skills that would transfer to less demanding work.
Vocational experts will be familiar with a publication called the Dictionary of Occupational Titles - which is a book compiled by the U.S. Department of Labor that describes the physical and mental requirements of all jobs that exist in the United States.
Examples of Vocational Expert
Testimony in Social Security cases
The Judge will use the VE to translate your medical problems into specific work limitations. After listening to your testimony, the Judge will turn to the Vocational Expert and pose one or more questions about your job capacity. Here are some examples of questions that a Social Security judge might pose to a vocational expert witness:
- Question 1: Mr. VE, assume I find that the claimant is 48 years old, with a high school education and has past work as a machine operator, as a shift supervisor at a convenience store and as a shift supervisor at a retail store. Further assume that I find that the claimant has been diagnosed with fibromyalgia and has a moderate level of pain all the time. Further assume that the claimant can stand for no more than 20 minutes at a time, and that standing can constitute no more than 2 hours total during a work day. Sitting is unlimited, although the claimant needs a sit/stand option. Could this claimant return to her past work? Could she do any other work?
- Question 2: Mr. VE, assume the same limitations set out in question 1, but add the following limitations. Assume that I find that the claimant’s testimony is credible in her statement that her pain level rises to a severe level at least one hour per day at unpredictable times. This severe level of pain would cause a significant interference with attention and concentration. Assume further that as a result of pain, the claimant would likely leave work early or miss work entirely 1 to 2 days per week.
What does all this mean? In response to question (1), the VE testified that the claimant could not return to past work, but could perform a variety of unskilled, sedentary jobs. In response to question (2), the VE testified that the claimant could not return to either past work or to any other job.
The point of this is to show you how the wording of the question to the VE can result in a win or a loss. That is why it is so important to get your doctor’s cooperation in identifying specific work activity limitations arising from your medical condition. Further, your testimony should be both truthful and consistent with the limitations set out by your doctor. Experienced disability lawyers understand the importance of recognizing the work limitations that naturally arise from your medical problems and how to include these limitations in questions for the vocational witness.
The Medical Expert Witness in
Your Social Security Disability Case
In some cases, your Judge will call a medical expert as well as a vocational expert. In our experience, a Judge will call a medical expert if your medical record is long and complicated; if you have been diagnosed with multiple conditions; if there is contradictory information in your medical record.
Some Judges call Medical Experts (also called ME’s) frequently. Other judges call them rarely. Most ME panels include psychiatrists, psychologists, orthopedists, internists, cardiologists and other specialists.
The quality of testimony from various Medical Experts varies widely. Some Medical Experts testify frequently and understand the underlying vocational nature of a Social Security case. Other ME’s provide very little help. In addition, some Medical Experts are very conservative by nature and do not believe in the concept of disability. Others are more reasonable in their attitudes.
If your attorney is experienced, he or she should have an idea about how the Medical Experts usually testify. Your attorney is permitted to cross examine the ME, either to clarify a point or to discredit the testimony if it is out of line.
Vocational expert testimony, by contrast, is usually much more consistent and predictable than Medical Expert testimony.
Where do You Sit at Your Disability Hearing
and Who Says What
When you enter the hearing room, you will be directed to sit in a specific chair, usually one that is facing the Judge. The Judge will introduce himself/herself along with the hearing assistant and the Vocational and/or Medical Expert witnesses. He will then ask your attorney to state his/her name. The Judge will then read a very brief statement setting out the issues to be heard In most cases, he will ask your lawyer to waive a formal reading of the issue.
The Judge will then ask your lawyer if he has any objections to exhibits in the record and if there are any outstanding records not in your file.
One of the thing you should expect from your lawyer is a diligent effort to obtain up-to-date copies of your medical records. Remember, the Hearing Office will not update your records - this is your and your attorney’s responsibility. Your Judge will be upset (and may even postpone the hearing) if important medical reports are missing. For this reason, you should contact your lawyer’s office regularly to advise them of new treatment, new doctors, etc. Make sure to give your lawyer enough time to request and obtain these medical records.
Assuming no objections to the record, the Judge will swear you in to tell the truth. If your religious beliefs do not permit you to take a sworn oath, you may affirm that your statements will be true.
The Judge may then ask your lawyer for an opening statement. Again, some Judges do and others do not.
Your Testimony at Your Social Security Hearing
Every Judge has a different technique with regard to questions and testimony. Most Judges will ask all the questions, offering your lawyer a chance to follow-up. Other Judges leave all questioning to your lawyer. The subjects covered in your direct examination include:
- background information - your age, education, marital status, living arrangements (home, apartment, etc.).
- discussion of past work as performed - lifting, carrying, supervisory roles, etc.
- specific discussion of medical problems and activity limitations
Things Your Must Remember When
You Testify at a Disability Hearing
The most important things for you to remember when testifying are as follows:
- Tell the truth - do not exaggerate. For example, if you have trouble lifting because of back problems, do not say, “I cannot lift anything at all” because it is not believable that you would be unable to lift a telephone or a glass of water. Instead, refer to common household items, such as a gallon of milk (8 lbs.) or a 5 lb. bag of sugar. It is okay if you can lift one of these items briefly, but important to your case if you would not be able to lift these items throughout the day.
- Be Specific - instead of saying “I can’t walk very far and I can’t lift very much, say It is about 25 yards to my mailbox. When I get to the mailbox, I have to stop because my knees hurt so bad and my chest hurts. When I come back, I have to support myself on a fence so I won’t lose my balance. As far as lifting, I tried to lift a gallon of milk about a month ago, but I could not hold it, even with both hands, and it fell and spilled all over the floor.
It is very important that you remember and practice being specific. You will be nervous at your hearing and you will find it difficult to think about how much you can lift, how far you can walk, etc. Practice ahead of time!
- Be very descriptive when describing pain. Don’t say “it hurts a lot.” Instead, say “when I get a migraine, I can’t do anything. I feel nauseous and sick. I turn off the lights, lie in bed with a cold compress on my forehead and I try not to think at all. It usually takes my medicine about an hour to kick in - even that does not help - it just puts me to sleep.”
Some lawyers will advise you to describe your pain on a scale of 1 to 10, with 1 being a mild headache and 10 being severe pain like a kidney stone. Generally you want to describe pain that varies throughout the day - for example: “my pain level is always at a 5 or 6, but I can manage that with medications.” At least 2 to 3 hours a day, my pain rises to an 8 or 9. At an 8 or 9, it is so severe that I cannot concentrate on anything and I have to go to bed and lie on my side. This severe pain happens at least 3 times a week, and can be brought on if I step wrong or if I overdo it with housework or trying to cook.”
- Standing and stretching is acceptable. It is okay to stand up and stretch during your hearing. If you need to stand up and walk around, do so. Judges do not mind if you have to stretch out. This is especially important if you testify that you can sit without interruption for no more than 15 minutes, then you sit still at your hearing for an hour.
- Say yes or no, not uh-huh or huh, or a nod of your head. Remember that your hearing is being tape recorded.
- Do not curse or use slang language.
- Dress neatly - you do not need your Sunday best, but you should avoid blue jeans and T-shirts
- Bring your bottles of medicine - the Judge may want to see them
- Your attitude during your testimony is important. Remember that your Judge sees claimants every day who want benefits. Your attitude ought to be “if I could work I would work.” Describe for the Judge what you did and how you enjoyed being productive and useful.
- Don’t tell the Judge that you are disabled - that is his job to decide. Judges prefer claimants who do not have an attitude of entitlement.
After listening to your testimony, the Judge will then take the expert witness testimony and ask questions of the expert witnesses. Your attorney will also be given an opportunity to ask questions of the expert witnesses.
Finally, the Judge may ask you if you have any final comments. If everything was covered in your testimony, its OK to say that you have nothing else to say. Respect the fact that the Judge has other hearings and time constraints.
In most cases, the Judge will not issue a decision at the end of the hearing. There are two reasons why you generally do not get a decision immediately. Firstly, the Judge may want to spend additional time reviewing your medical records. Secondly, Judges do not wish to engage in arguments or confrontations with unhappy claimants.
You can expect to receive a written decision in four to six weeks, sometimes longer.
Your lawyer can give you specific advice about how hearings are conducted in your local Office of Hearings and Appeals. Take the time to prepare yourself for your hearing - this is your best opportunity to win disability benefits and you want to minimize confusion and avoid surprises.