If you are turned down by the Social Security adjudicator at your initial application, and at your reconsideration appeal, your next step is to request a disability hearing before an administrative law judge.
Your disability hearing will be scheduled before a Social Security judge in a hearing office located near you. Interestingly, most hearing offices don’t look like courthouses. In Atlanta, for example, the downtown hearing office is located in the Peachtree Center office building complex. The North Atlanta hearing office is located in an office park on Clairmont Road, and the west Atlanta hearing office is located near the airport. There is also a disability hearing office in Covington, Georgia.
Disability hearings last about an hour and your judge will schedule 6 or 7 hearings in a day. If your hearing is set for 10 AM, you will want to be in the waiting area by 9:20 or 9:30. If you are late, your hearing may be reset or even dismissed.
All of the Atlanta area hearing offices are secure facilities, meaning that you and any guest who comes with you will be screened by a security officer. If you have a pocket knife or a can of mace, leave those items in the car. You should also bring a picture ID – security guards don’t always ask for an ID, but you should be prepared.
I also want my clients to arrive early so I can spend a few minutes going over testimony and answering any last minute questions.
Just prior to your disability hearing time, the judge’s hearing assistant will come out to the waiting room to speak with us. She (or he) will ask you to verify your mailing address and phone number. She may also ask you to sign a medical authorization. She will also ask us if we plan on having any witnesses testify. If we do, the hearing assistant will ask us for the name of the witness and that person’s relationship to you.
Next, the hearing assistant will escort us back to the disability hearing room. Unlike other court proceedings, Social Security disability hearings are private and not open to the public. Similarly, judges generally prefer that we not have observers in the hearing room so, unfortunately, you cannot have a friend or relative come into the hearing room with you for moral support.
If we have a witness, that witness will need to wait outside until called.
When we enter the hearing room itself, you will see the judge sitting behind a bench and a “T” shaped table. You will generally sit facing the judge and I as your attorney will be to your left or right. In most hearings, the judge will have a vocational witness present – that witness will sit next to you at the hearing table. The judge’s hearing assistant will generally sit next to the judge and operate audio recording equipment.
Every disability hearing judge runs his or her hearing slightly differently but about 90% of what happens is the same.
First, the judge will greet you and introduce himself or herself. He will introduce the hearing assistant and the vocational witness and ask you if you are comfortable. The judge will remind you that previous determinations were not favorable to you and that he (the judge) will take a completely new look at the evidence.
The judge will ask me if I have had an opportunity to review the evidence and if I have any objections. The judge will ask me if there is any outstanding evidence and if I have had an opportunity to review the issues for this hearing with you. The judge will ask me if I will waive a formal reading of the issues to be covered (I always agree to do so).
Next, the judge will administer oaths. He will ask you and the vocational witnesses to raise your right hands and swear to tell the truth.
Most judges will then ask me to give a brief opening statement. At that point I will summarize the evidence and present our theory of disability. Remember that my opening statement is not evidence, although your testimony is evidence.
After I finish my opening statement, the judge will either ask me to present my case by asking you questions or the judge will ask you questions.
How to Answer Questions from the Judge
Whether I conduct the direct examination or the judge does, you should be prepared to answer the following questions:
- your date of birth and Social Security number
- how tall are you and what do you weigh?
- what is the highest level of education you completed?
- who you live with and what type of dwelling you live in?
- are you currently working?
- what is the last job you did for pay?
- if you have not worked, have you volunteered someplace or attended school full or part time?
Remember that the main issue in your disability case has to do with your capacity to work, so you will need to be able to explain why you believe you are not able to work.
If your medical issues are physical in nature, you will be asked:
- how long can you sit?
- how long can you stand?
- how much can you lift?
- do you have trouble climbing stairs or walking on uneven terrain?
- do you have any trouble with bathing, toileting or getting dressed?
Some judges will challenge you if your testimony is not consistent with something in the medical record. For example, if the doctor’s notes indicate that you were feeling better but you testify that you were not, the judge may want you to explain the discrepancy.
- If the medical record indicates that you have gone back to work full or part time, you will be asked about that.
- If the medical record discusses alcohol or drug use, you will be asked about that.
I always meet with my clients in person or over the phone prior to their disability hearings and we practice and go over the questions you are likely to get during your hearing. I can’t stress enough how important it is to prepare.
How to Practice for Your Disability Hearing
Practicing is also important so that you can avoid simple mistakes like using the wrong word or minimizing your symptoms. Again, realize that the judge is trying to determine if you could perform the duties of a simple, entry-level job 8 hours a day, 5 days a week. He is not asking if you could perform this job for 1 week if your life depended on it, nor is he asking if you want to do a particular job or if you have transportation to a entry-level job. The only question: could you perform simple job duties every day, on-going?
I also advise my clients to avoid statements like “I can’t sit very long” or “I can’t lift much of anything.” These statements don’t mean anything. Instead, make specific assertions like “I can only sit for about 10 minutes before I become so uncomfortable that I need to stand up and walk around for 5 to 10 minutes. I can sit for a total of 3 hours during the day – the rest of the time I am in my recliner trying to get comfortable.”
Vocational Witness Testimony
After listening to your testimony, the judge will turn to the vocational expert witness (VE) to ask him/her questions. Keep in mind that the VE is not there to help you or hurt you. Instead the VE is there to help the judge “translate” your medical issues into work limitations.
The judge will ask the VE to describe your past work. The VE will classify your jobs over the past 15 years using a resource called the Dictionary of Occupational Titles, or DOT. The DOT is outdated, with most entries last updated in the 1980s and 1990s, however, Social Security still relies on it. Jobs are classified as sedentary, light, medium or heavy, and as unskilled, semi-skilled or skilled.
The judge needs to know about your past work so that he can make a finding about whether you can return to past work or not.
After the VE describes your past work, the judge will ask the VE a series of “hypothetical” questions. The hypothetical person in these questions is obviously you but Social Security has judges ask questions using the hypothetical person format.
Here is an example of a hypothetical question: Mr. VE, please assume we have an individual who is the same age as our claimant with the same education and work experience. Assume further I find the following conditions and limitations:
our hypothetical person is limited to light work, but with the following limitations
– she needs a sit/stand option at her workstation
– she needs to avoid overhead lifting using the right shoulder
– she should only occasionally be asked to push and pull objects over 25 lbs.
– she should only occasionally be asked to climb ladders, ropes and scaffolds
– she should never be exposed to unprotected heights or hazardous machinery
– she can frequently kneel, stoop or crawl
Based on these limitations, can this person perform the duties of the claimant’s past work, and if not, are there other jobs in the national economy such a person can perform?
Some judges present the VE with a series of questions, each with slightly more limitations, until the VE cannot identify any jobs. Some judge present only one question (which usually represents how they see your vocational profile).
After the judge asks his hypothetical questions, he will allow me to ask questions as well. Obviously a good sign would be where the VE answers “no jobs” to most or all of the judge’s questions.
After taking VE testimony the judge will ask me if I wish to make a closing argument and thereafter he will close the disability hearing.
We will not get a verbal decision from the judge that day. Sometimes I will have a sense that things went well, or not well, and sometimes, we will just have to wait for the written decision.
The entire hearing will last about 45 minutes to an hour. My experience has been that your medical records are the most important factor in whether or not we win, but your testimony can make or break a case where the medical evidence is not definitive. Your credibility or believability is a major factor so proper preparation is a must.
If you have any questions about the Social Security disability hearing process or about your claim for disability benefits, please feel free to call or email – I’d be happy to help you any way I can.