What Actually Happens at a Social Security Disability Hearing?
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 hearing room 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 did not meet face to face and whose evaluation of your case was based on your medical records only. And since your doctor’s reports did not contain certain medical terms nor did they discuss specific vocational restrictions, your case was denied.
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 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. 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 dialogue with the judge.
Who Will Be There?
The participants at a hearing will be the Judge, a hearing assistant (who operates the tape machine), you, your lawyer and possibly one or more expert witnesses. Usually, the judge will be with you at the hearing. However, Social Security has expanded its use of video hearings, so the judge may appear via video from a remote location.
Why Will Expert Witnesses be Present at my 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). 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 this job (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 Directory of Occupational Titles – which is a book published 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
The Judge will use the VE to “translate” your medical problems into 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. For example, in a recent hearing the Judge posed the following questions to the VE:
- “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?
- “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. As your attorney, our job is to explain to you what is in your file and practice your testimony.
The Medical Expert
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. Currently, the ME panel includes psychiatrists, psychologists, orthopedists, internists, cardiologists and other specialists.
It has been our experience that 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.
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 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 responsibility. It has been our experience that 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.
Assuming no objections, 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.
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
What You Must Remember When Testifying
The most important things for you to remember when testifying are as follows:
- tell the truth
- be specific – instead of saying “I can’t walk very far and I can’t lift very much,” say “It’s 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. It has been our experience that you will be nervous and that at a hearing, it will be hard 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”
- if you need to stand up and walk around, do so. Judges don’t 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.
- don’t curse
- dress neatly – you don’t 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.
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 “no.” 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. You can expect to receive a written decision in four to six weeks, sometimes longer.