Monthly Archives

March 2014

Questions about working part-time

By After a favorable decision

Working Part-Time After You’ve Been Found Disabled by the Social Security Administration

Is it possible to work part-time and not lose my disability benefits?

Yes. It is possible. However, the full answer to this question depends on how much you earn and what kind of disability benefits you are receiving, either:

  • Social Security disability benefits (sometimes referred to as Social Security Disability Insurance – SSDI), or
  • Supplemental Security Income (usually referred to as SSI) benefits.

If you are receiving Supplemental Security Income and you go to work, the Social Security Administration (SSA) will reduce your SSI benefits by one dollar for every two dollars you earn after the first $65 (or $85 if you have no other income). This means that you could earn so much working part-time that your SSI benefits will stop. But unless your benefits have stopped because of your earnings for an entire year, the Social Security Administration will start up your SSI benefits again if your earnings go down. After a year of receiving no benefits, you’ll have to apply all over again.

If you are receiving Social Security disability benefits and your earnings are below what the Social Security Administration calls the “substantial gainful activity” amount, your benefits will neither stop nor be reduced because of earnings. That is, you’ll continue to get your full Social Security disability benefit while you work part-time. It is also possible to earn more than the “substantial gainful activity” amount and still receive your full benefits during the nine-month trial work period.

How much can I earn per month and still receive my Social Security disability benefits?

You can earn up to the “substantial gainful activity” amount, which in 2016 is $1,130 per month, and still keep your full Social Security disability monthly benefit. The substantial gainful activity amount is an absolute cut-off point. If your countable earnings average more than the substantial gainful activity amount, even $1 more, your Social Security disability benefits will stop after you have used up your nine-month trial work period (and a grace period of three more months), no matter how disabled you are.

If you are going to work part-time and you want to avoid problems keeping your benefits, it is best to keep your income well below the substantial gainful activity amount. In fact, because there are advantages to keeping your income below what SSA calls the “trial work period services” amount, which in 2016 is $810 per month, this is what we recommend if you are receiving Social Security disability benefits. This way you won’t use up your trial work period months; you can save them for later use if you ever decide to try to go back to work full-time.

If your claim is for SSI, the trial work period rules do not apply. For those people already receiving SSI benefits, the substantial gainful activity amount rules don’t apply either.

What are the advantages to keeping income below the “trial work period services” amount?

The trial work period rules allow you to earn any amount per month for nine months and still receive full monthly disability benefits. This lets you test your ability to return to full-time work without having your monthly disability benefits stop. For example, you could go to work full-time for eight months during which time you would get paid for full-time work and receive your Social Security disability benefits too. If at the end of eight months of work you decide that you cannot continue, there is no harm done to your on-going disability benefits. You’ll keep your benefits as long as you don’t medically improve.

However, people often use up their trial work period months by working part-time. Some people, who worked part-time while their claims were pending, are surprised to discover that they used up their trial work period months even before the Social Security Administration found them disabled. If your income exceeds the trial work period services monthly amount (which is $750 in 2013 — it goes up a little most years) for nine months at any time since you applied for benefits, even if those nine months are not consecutive, you will have used up your trial work period. A trial work period month here and a trial work period month there counts as long as all nine months are in any five-year period. Once you use up your nine-month trial work period, it is gone.

People who have already used up their nine-month trial work periods by working part-time are surprised when the Social Security Administration abruptly stops their disability benefits. For example, if your trial work period has already been used up and then you go to work full-time for eight months, your benefits will be stopped after only three months of work. You’ll probably be able to get your disability benefits back if you stop working within three years after you used up your nine trial work period months; but then if you work again at the substantial gainful activity level more than three years after you used up your trial work period, the Social Security Administration is supposed to stop your benefits with the first month of work. If you’re unable to continue working at that point (that is, more than three years after the end of the trial work period), you’ll have more difficulty getting your benefits reinstated.

In short, it is best not to use up your trial work period until you are ready to return to work full-time. Because the trial work period can be valuable, we recommend that you not waste it on part-time work. To keep from wasting the trial work period, you need to keep your monthly income below the trial work period services amount.

When I am trying to keep my income below the trial work period services monthly amount, is it gross income or take-home pay that counts?

Gross income. And that gross income is not averaged over months worked. The trial work period services monthly income rules are very strict. There are no deductions that can be taken against your gross income to reduce it below the trial work period services monthly amount.

If I need more income than the trial work period rules allow, what are the rules for working at less than the “substantial gainful activity” level?

Gross income counts but income is averaged. Theoretically, you get to subtract sick pay, vacation pay, and what the Social Security Administration calls “impairment-related work expenses,” which, as a rule, are the amounts of out-of-pocket payments you make in order to treat your disabling impairment, but there may be some other work expenses that can be deducted too. You’ll need to consult with your attorney or someone at the Social Security Administration about these deductions because many things you might think are deductible, like health insurance, are not deductible. These deductions can be used to reduce your countable income below the substantial gainful activity level. But if you rely on such deductions to keep your income below the substantial gainful activity amount, you’re really living dangerously. It is safer just to use the substantial gainful activity amount as your guideline and make sure your average monthly gross earnings do not exceed this amount.

Is it possible to work part-time at my own business?

It is possible even though the Social Security Administration’s rules allow it to find that a person, who is working part-time in his or her own business and actually losing money (as many businesses owners do when they first open their businesses), is engaging in substantial gainful activity. Benefits can be lost on this basis alone, though this is unusual.

Also, even if you are losing mo
ney but you are working more than 80 hours per month, the Social Security Administration will find that you are performing trial work period services. Thus, you will be using up your trial work period.

When must I report my work income to SSA?

If you are receiving SSI benefits, you must report income you receive in one month by the tenth of the next month.

If you are receiving Social Security disability benefits, the Social Security Administration requires that you report “promptly” when you go to work or start your own business. Thus, you need to tell the Social Security Administration right away that you are trying to work.

But nowhere does the Social Security Administration provide a clear statementwhen you need to send it copies of check stubs and proof of any impairment-related work expenses. Thus, you’re likely to be told different things by different people at the Social Security Administration. The general rule is that you must report earnings early enough to avoid an overpayment. But if you’re keeping your income below the substantial gainful activity amount, you won’t have an overpayment (unless you make a mistake).

When you telephone the Social Security Administration to report that you have begun work, ask when you need to provide income documentation. Because different rules apply, make sure that the Social Security Administration representative understands that you are receiving disability benefits, not retirement benefits. Be sure to get the name and location of the person you speak with. Follow up with a letter to your local office, which explains that you have started working and repeats what you were told about reporting income. Keep a copy of the letter.

The appeals process

By After an unfavorable decision, Disability appeals

The Appeal Process in Social Security Disability

There are four levels of administrative adjudication of Social Security claims. They are:

(1) The initial determination,
(2) Reconsideration determination,
(3) Hearing before an administrative law judge, and
(4) Review by the Appeals Council.

After this, a case may be filed in federal court.

The time limit for all Social Security disability appeals but one is 60 days from the date of receipt of a decision. Because there is a strong presumption that decisions are received five days from the date on the face of the decision, unless there is evidence to the contrary, the effective time limit is 65 days from the date of the decision.

The only exception to the 65-day effective time limit for appeal applies to appealing an ALJ denial to the Appeals Council after there has been a federal court remand. The time limit is 30 days for these appeals.

When the period for requesting the next appellate step ends on a Saturday, Sunday, legal holiday, or any other day of which all or part is a non-workday for federal employees by statute or Executive Order, the period is extended to include the next full workday. 20 C.F.R. §§ 404.3(b), 416.120(d).

The Social Security Administration (SSA) treats an appeal as filed on the day it receives it. However, SSA will use the date a “request or notice is mailed to us by the U.S. mail, if using the date we receive it would result in the loss or lessening of rights. The date shown by a U.S. postmark will be used as the date of mailing. If the postmark is unreadable, or there is no postmark, we will consider other evidence of when you mailed it to us.” 20 C.F.R. § 404.614(b)(2).

Disability Service Improvement

If you live in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut, the administrative appeal process changed on August 1, 2006 under the program named Disability Service Improvement (DSI), which was implemented by regulations in a new part of 20 C.F.R., Part 405. Although the original plan was to gradually extend DSI to the rest of the country, it now appears that only certain aspects of DSI will be made applicable to the rest of the United States.

DSI is designed as an experiment to see if SSA can speed up disability determination at all levels including the initial determination. Based on a predictive model, some cases are automatically referred from the field office to a state agency Quick Disability Determination unit with the goal of making a favorable determination within 20 days. 20 C.F.R. § 405.105. For all initial determinations, not only those referred to the Quick Disability Determination units, SSA will require state agencies to adopt a standard decision-writing format that “will explain in clear and understandable language the specific reasons for and the effect of the initial determination.” 20 C.F.R. § 405.115.

DSI initially replaced the reconsideration step with review by a federal reviewing official; but because of budgetary issues and long processing times, sending new cases to federal reviewing officials was suspended in early 2008, reverting to the process that was in effect in these states before DSI. Cases already assigned to federal reviewing officials were to be processed by them. It is unlikely that any new cases will be assigned to a federal reviewing official in the future.

Some DSI administrative law judge (ALJ) hearing procedures are more formal with more mandatory time limits than under current practice. See 20 C.F.R. §§ 405.301 ff.

Under DSI, the Appeals Council is replaced by a Decision Review Board, to which a claimant can appeal only an ALJ dismissal order (after requesting the ALJ to vacate the dismissal). 20 C.F.R. § 405.427. Otherwise the Decision Review Board deals only with own motion review of both denial and favorable decisions based on a statistical claimant profile. You will be notified in the notice of an ALJ decision if your case has been selected for review by the Decision Review Board. 20 C.F.R. § 405.371. If the Decision Review Board does not act within 90 days, the ALJ decision becomes final and may be appealed to federal court. 20 C.F.R. §§ 405.415 and 405.420.

Claimant appeals of ALJ denial decisions, unless the Decision Review Board takes jurisdiction, go directly to federal court. 20 C.F.R. § 405.501.

Initial and Reconsideration Determinations

Although a Social Security disability claim (but not an SSI disability claim) can be completed on the Internet at www.socialsecurity.gov/applyfordisability/ , most claimants initiate their claims by telephoning an SSA teleservice center at SSA’s toll-free number, 1-800-772-1213. Teleservice center staff will make an appointment for the claimant with an SSA representative from a local office.

If you prefer, an appointment can be made to go to a local Social Security office to complete an application in person, though most make a telephone appointment for an SSA claims representative to call back at an appointed hour. During the appointment, you will be asked basic information which will be entered into a computer application form that will be printed and, if it is a telephone interview, will be mailed to the claimant for signature, along with other forms to be completed and signed. An application for benefits is one of the few forms in a disability case that may not be signed by a lawyer on your behalf, unless that lawyer is appointed to do so by a court. See 20 C.F.R. §§ 404.612 and 404.613.

The prohibition on a lawyer signing an application for benefits on your behalf includes a prohibition against a lawyer “electronically signing” an application that is submitted over the Internet, although a lawyer may assist in filing an application. See https://secure.ssa.gov/apps6z/ISBA/main.html.

At the initial and reconsideration levels the SSA does not make medical determinations of disability. Instead, claims are referred to an agency of the state government that has a contract with SSA for determining disability. At the state agency usually a medical doctor and a layman, called a disability examiner, evaluate the claim, though SSA has been experimenting in pilot projects with having disability examiners make uncomplicated decisions on their own. The SSA then adopts the determinations at these two levels.

If you are dissatisfied with the initial determination, you may appeal. In most states, this appeal is a request for reconsideration. In ten states Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, Pennsylvania, and parts of New Yorkand California, called prototype states, SSA is experimenting with eliminating the reconsideration step. The initial determination will tell a claimant in a prototype state to appeal by requesting a hearing. HALLEX I-2-4-99 contains instructions for processing appeals in those circumstances where a claimant moves into or out of a prototype state while the claim is pending.

If you request reconsideration, a different team than the one that issued the initial determination will make the reconsideration determination; but the result will probably be the same. Relatively few reconsideration determinations result in an award of benefits. See 20 C.F.R. §§ 404.907 et seq. regarding reconsideration. The next step is to request a hearing before an administrative law judge.

The Hearing

After you request a hearing, but before a hearing is held, an attorney advisor (whose job includes writing decisions for ALJs) may review the file, request additional evidence and conduct an informal prehearing conference (usually a telephone call to your attorney). The attorney advisor may issue a fully favorable decision. If so, the hearing request will be dismissed unless a request to proceed with the hearing is made within 30 days after the date of the attorney advisor decision. The Appeals Council, not an ALJ, has authority to review a decision by an attorney advisor. 20 C.F.R. § 404.942.

You may appear in person before the ALJ or by video teleconferencing. If you object to appearing by video teleconferencing, the ALJ must reschedule the hearing so that you can appear in person. 20 C.F.R. § 404.936(d) and (e).

At a hearing before an ALJ, evidence may be received even though it would not be admissible in court under the rules of evidence used by the court. 20 C.F.R. § 404.950(c). Vocational or medical experts sometimes testify, appearing in person or by video teleconferencing. 20 C.F.R. § 404.936(c). The hearing is not adversarial in nature. The hearing is recorded and testimony is taken under oath or by affirmation. After the hearing, a written decision is issued by the administrative law judge. See The Hearing and 20 C.F.R. §§ 404.929 et seq.

Differences Between State Agency Determinations and Hearing Decisions

There are significant differences between the way disability is evaluated by the state agencies and the way ALJs approach the issue. Although it is the rule at all levels that a disability decision cannot be inconsistent with the medical evidence, the state agency decision-makers, who have only the cold file to review, seldom look beyond medical findings to consider your actual ability to work. At the state agencies, the Listing of Impairments is used much more often as a basis for a favorable decision. Despite several successful lawsuits challenging this, state agency decision-makers tend to use the Listing of Impairments as the unstated basis for a denial determination, especially for those claimants under age 50.

If a younger claimant’s impairment does not meet a Listing, that claimant is unlikely to be found disabled by the state agency. State agency decision makers tend to apply specific formulas (found in state agency manuals) to determine residual functional capacity (RFC) for certain medical impairments, thus treating all claimants with similar medical findings the same. Few of the state agency formulas point to a conclusion that a claimant can do less than a wide range of sedentary work.

ALJs, on the other hand, tend to view medical findings as setting the parameters for a range of possible RFCs, some of which may lead to a finding of disabled. They view their role as evaluating the entire case, including your credibility, to determine which possible RFC most closely describes your capacity. ALJs find claimants under age 50 disabled because of inability to perform a wide range of sedentary work much more often than state agency decision makers do.

The chart in below was created in conjunction with a Social Security Administration study of the differences between state agency decisions and ALJ decisions. It shows, for example, that during the period studied, ALJs found claimants with back impairments disabled 75% of the time while the state agency did so only 11% of the time. Look at the entry for claimants under age 50 with back impairments. The state agency found them disabled only 2% of the time while ALJs found them disabled 68% of the time.

State Agency and ALJ Disability Decisions Compared

Compare the “Percent of awards—Functional” column, referring to the percentage of findings of disabled made at step 5 of the sequential evaluation process (as opposed to finding the claimant disabled at step 3 on the grounds that the claimant’s impairments meet the Listings). Only 39% of all disability findings were made by state agency decision makers at step 5 compared to 75% of awards made at this step by ALJs.

The SSA has viewed these differences in approach to decision-making as a problem. The series of Social Security rulings published in 1996, SSR 96-1p through SSR 96-9p, known as the “process unification rulings,” were designed to encourage a unified approach to decision making at all administrative levels. Most observers agree that there have been some changes. More claimants are now found disabled by the state agencies. There are fewer favorable decisions being issued by ALJs now than when this study was conducted. But most observers agree that the disparities illustrated by the chart above remain in place. For example, if a claimant is under age 50 and has a back problem that does not meet the Listings, that claimant is likely to be denied by the state agency; but if that claimant is truly unable to work, the claimant may have a good chance of winning before an ALJ.

Appeals Council Review

If a decision after hearing is unfavorable, you or your representative may ask for review of that decision by the Appeals Council, which sits in Falls Church, Virginia. The Appeals Council may decline to review the decision of the administrative law judge, in which case the decision of the ALJ becomes the final decision of the Commissioner of Social Security on the claim, subject to court review. The Appeals Council may review the decision of the ALJ and affirm it, modify it, reverse it, or remand it for a new hearing.

In some instances, the Appeals Council reviews decisions of administrative law judges, either favorable or unfavorable to the claimant, on its own motion.

New evidence, applicable to the time before the date of the ALJ’s decision, may be submitted to the Appeals Council. Review by the Appeals Council is almost always a review of the record. Although there is a provision that allows the claimant or representative to petition to be allowed to appear before the Appeals Council, oral argument is virtually never granted. See 20 C.F.R. §§ 404.967 et seq. regarding Appeals Council review.

Federal Court

If the Appeals Council denies review or makes a decision adverse to you, you may file a civil action in the United States District Court for the district where you live. The Commissioner of Social Security is named as defendant. The court has the power to affirm, modify or reverse the decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g).

If the U.S. District Court affirms the decision of SSA and grants judgment to the defendant Commissioner, you may appeal to the United States Court of Appeals for the circuit in which the district court sits. If the Court of Appeals denies your case, you may file a petition for certiorari with the United States Supreme Court. Recently the Supreme Court has granted certiorari in very few Social Security Act cases.

Good cause for late appeals

By Disability appeals

Good Cause for Late Social Security Disability Appeals

If you do not meet the deadline for appealing a denial of your Social Security disability claim, you may ask that the Social Security Administration (SSA) extend the deadline by finding that there was good cause for missing the deadline. To do so, include with your appeal a detailed letter explaining why the request for review of the determination or decision was untimely. Depending on the circumstances, an affidavit from you may be necessary. If SSA finds “good cause” for the delay in appealing, it will extend the time limit. 20 C.F.R. §§ 404.909(b), 404.933(c), 404.968(b).

POMS GN 03101.020 A.1. provides: “An individual from the component that has the authority to adjudicate the appeal being filed determines whether ‘good cause’ exists.” Thus, an administrative law judge (ALJ) will determine good cause if the Request for Hearing is late; the Appeals Council will determine good cause if the Request for Review of Hearing Decision is late. The Appeals Council will also determine good cause to extend the deadline to file in federal court.

“Good cause” for missing a deadline for requesting review is described in 20 C.F.R. § 404.911. According to that regulation, SSA will consider circumstances preventing a timely appeal, whether any SSA action misled the claimant and whether the claimant failed to understand the requirement of timely appeal. 20 C.F.R. § 404.911(a)(1)-(3). 20 C.F.R. § 404.911(a)(4) provides that SSA will consider:

Whether you had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented you from filing a timely request or from understanding or knowing about the need to file a timely request for review.

Social Security Ruling 91-5p expands on 20 C.F.R. § 404.911(a)(4). The ruling provides that if a claimant had no one legally responsible for prosecuting the claim, “e.g., a parent of a claimant who is a minor, legal guardian, attorney, or other legal representative,” and the claimant shows that mental incapacity prevented the claimant from timely appealing, “regardless of how much time has passed since the prior administrative action, the claimant can establish good cause for extending the deadline to request review of that action.” According to the ruling, the evidence must show that the claimant lacked the mental capacity to understand the procedures for requesting review. Reasonable doubt is to be resolved in favor of the claimant.

Examples of Good Cause

20 C.F.R. § 404.911(b) provides nine examples of good cause for missing a deadline:

(b) Examples of circumstances where good cause may exist include, but are not limited to, the following situations:

(1) You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person.
(2) There was a death or serious illness in your immediate family.
(3) Important records were destroyed or damaged by fire or other accidental cause.
(4) You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods.
(5) You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeal Council review or filed a civil suit.
(6) We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit.
(7) You did not receive notice of the determination or decision.
(8) You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired.
(9) Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely.

Common Situations

Example 7 presents the common situation where a claimant says he or she did not receive the determination or decision. To prevail on this issue, as a rule, you need more than simply an allegation. 20 C.F.R. § 404.901 provides, “Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.” POMS GN 03101.020 A.4.h. provides these examples: “e.g., SSA used incorrect address or claimant moved.”

Another common situation occurs when the claimant was confused by information given by SSA. This allegation not only raises the issue of the claimant’s mental status but also the quality of the information given by SSA. The POMS makes it clear that information from SSA need not be incorrect or incomplete. If the information was confusing, it could form the basis for an argument that there is good cause for missing the deadline. POMS GN 03101.020 A.4.f.

A situation that comes up from time to time is where a claimant thinks that his or her representative filed the appeal. The POMS provides a basis for extending the deadline in this situation. POMS GN 03101.020 A.4., which includes all the examples from 20 C.F.R. § 404.911(b), provides this additional example:

j. the claimant thought his/her representative had filed the appeal (good cause applies to the claimant despite whether the claimant is still represented or represented by a different person);

If SSA refuses to extend the deadline, the late appeal may be treated as a protective filing for a new application. POMS GN 03101.020 A.2 and GN 03102.150 A.1.

Advice for Your Social Security Disability Hearing

By Your disability hearing

Advice for Your Social Security Disability Hearing

Preparing for Your Disability Hearing

Arrive Early

Unless your attorney asks you to be at the hearing office at a specific time, arrive for your Social Security disability 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. It isn’t necessary for you to review it (although you may if you want to). Social Security disability hearings usually start on time, so whatever you do, don’t be late.

What to Wear

A lot of people ask what to wear, whether they should dress up for their Social Security disability hearing.

You do not need to dress up, and you do not 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 (within reason).

Don’t Talk About Your Case

Social Security disability hearings are serious business. Don’t make jokes. 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, and there may be a lot of Social Security employees in the building.

Turn Off Your Cell Phone

If you have a cell phone with you, don’t forget to turn it off before the hearing starts.

General Information About the Hearing

The Social Security Hearing Room

A Social Security hearing room is nothing more than a small conference room. It may have a few official trappings such as the seal of the Social Security Administration or an American flag.

Hearing rooms are always equipped with a conference table. There also may be a small table for the judge’s assistant. Usually there is a judge’s desk on a small riser that is slightly above the level of the conference table where you will sit.

The Recording Equipment

Each Social Security hearing room has its own recording equipment, which 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 to sound so 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. So try to say “yes” and “no” if you can.

Persons Present in the Social Security Hearing Room

You will be seated at the conference table along with your attorney. 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.

Also seated at the conference table (or perhaps at a small table next to the conference table) will be the judge’s assistant who operates a computer, which is used to make a CD-ROM that will contain the recording of the hearing.

You are allowed to bring witnesses and, if you wish, observers into the hearing room. But the hearing is private. Anyone present other than the judge, the judge’s staff and witnesses called by the judge must have your permission.

Social Security Disability Hearings Are Informal

Social Security disability hearings are much less formal than court hearings. They were designed so that they would not be a threatening experience. The Social Security Administration (SSA) 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 that are necessary to follow:

  • You and all witnesses will testify under oath.
  • 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 disability hearing is an Administrative Law Judge (ALJ). Although many judges do not wear judicial robes and you will not be expected to stand up when the judge comes into the room, the Social Security judge is entitled to the same respect that you would pay to a court judge.

The judge’s job is to issue an independent decision about your entitlement to disability benefits, a decision that is not influenced by the fact that your case was denied at the time of your initial application and on reconsideration. In fact, more than half of judges’ decisions nationwide are 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 neither your adversary nor your opponent: the judge’s job is to find out the facts about your disability claim.

Many people, by the time they get to a hearing before an Administrative Law Judge, are angry at the Social Security system. Their applications for disability benefits have been denied twice, often without any logical reason given for the denial. This system is cumbersome. It is time-consuming with all of its appeals and delays, and it is 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 so long for me to have a hearing?” and so forth.

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—someone 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 in “regular” words. You do not have to use lawyer words or doctor words. In fact, it’s much better if you do not use such terminology; instead, talk to the judge the same way you would talk to an old friend.

The Order in Which Things Happen at the Hearing

Many judges begin Social Security disability hearings by reciting the “case history” of your disability claim and stating the issues to be decided. Judges often state what you have to prove in your case — but they seldom give a clear and simple explanation. They usually say that in order to be found disabled for purposes of Social Security disability benefits 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 this, it almost sounds like you’ve got to be bedridden to get disability benefits – but this isn’t true.

The judge may question you first. Then 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.

On the other hand, some judges expect lawyers to handle most of the questioning. If so, answer questions asked by your lawyer as if a stranger were the one asking them. Sometimes a claimant gives incomplete answers when his or her lawyer asks questions, because the lawyer already knows a lot about the case. But 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. It is important to bring at least one witness to your hearing to testify in support of what you say, to give the judge details about your disabilities and how they affect you, or to offer a different perspective on your medical problems.

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. A few judges issue what is called a “bench decision” (a decision stated right at the hearing). Even if the judge issues a bench decision, the judge still must issue a short written decision, which will be mailed to you with a copy to your lawyer. The good thing about the written part of the bench decision is that it comes only a few days after the hearing. When the judge issues a regular decision, sometimes it takes quite a while for the decision to come out.

What Your Lawyer Does

Your hearing will be over in about an hour, maybe less. Hearings seldom take longer than an hour and one-half.

If you’re well prepared because of this website and your meeting with your lawyer before your hearing, your lawyer may not have to ask many questions at the hearing. In hearings with judges who like to ask most of the questions, the only time your lawyer needs to ask you anything is if your lawyer thinks that your testimony wasn’t clear enough or there are issues that were not developed. In fact, it’s better that way. The more information you give in answer to the judge’s questions, the better it is for your case. Your case will be presented naturally and your testimony will flow freely. The judge will get to know you and your situation as you and the judge talk; and the judge won’t think that it’s your lawyer testifying rather than you.

Your lawyer will, however, ask questions of any witnesses you bring along to the hearing; and it is the lawyer’s job to question any expert witnesses called by the judge.

The most important part of what your lawyer does usually takes place outside the hearing. That is, your lawyer gathers medical evidence, gets reports from doctors, does legal and medical research, and prepares witnesses to testify.

Your lawyer may make a closing argument either in writing or at the hearing. However, the best-developed cases don’t need a closing argument. If a case is well developed with medical evidence and with the claimant’s testimony, a closing argument is often not necessary.

There is one thing that lawyers cannot do: they are powerless to speed up the system. There may be a delay in getting the written decision. The written decision will be mailed to you with a copy to your lawyer. If you’re lucky enough to have the judge issue a bench decision at the hearing, the short written bench decision summary usually comes within a week. Otherwise, don’t expect a decision from the judge for at least a month — two months is more common. Sometimes it takes even longer for a hearing decision to be mailed to you. Some judges are very slow.

There is seldom any way to speed up getting a decision out. So, as hard as it is, you must grit your teeth and wait. If more than three months pass, it’s a good idea to make sure that your file hasn’t been lost; and your lawyer can do that. But your lawyer can’t do much more to speed things up.

Determining Disability

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 inability to get a job proves nothing.

A disability determination is a “hypothetical” determination. That is, 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. However, in the majority of cases your attorney will have to prove two things: First, that your medical impairments prevent you from performing any job you’ve done in the past 15 years; and second, that there aren’t 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. You have to prove that you cannot do that easiest job—you have to prove this even if you’re dead certain you’d never be hired for that job again, and 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 many other jobs—is even more complicated and opposed to common sense. In many cases you have to prove that you’re incapable of doing jobs that you know you’d never actually be hired for.

A lot of people have heard the language “totally and permanently disabled.” This phrase, which comes from workers’ compensation cases, does not apply in Social Security disability and SSI disability cases. For Social Security, you don’t have to be “permanently” disabled; you only have to be disabled for 12 months. 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 an Administrative Law Judge 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 fron
t 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 you figure that out, your attorney can determine whether or not jobs within your capacity exist in significant numbers in the economy, considering your age, education and work experience. Your attorney does that either by looking at a fairly complicated set of rules or, in some complicated cases, by asking a vocational expert.

Rules for Determining Disability

The rules that for determining disability apply most directly to impairments that limit your physical ability to stand, sit, walk, lift, 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 what you’ve got to prove to win your case. 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 an easy sit-down job or even a job where you’re allowed to alternate sitting and standing during the workday. You’ve got to prove this even though you might not be hired for such a 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, occasionally up to 50 pounds. Thus, you can even be capable of doing light work and still be found disabled.

As you can see, your lawyer will not only prove what you can’t do, but also what you can do. 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, and you are going to have to be able to explain them to the judge.

How does your lawyer go about proving all of this? He or she does it through your testimony in response to questions from the judge and 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 yourself. Otherwise, it could look like your lawyer is prodding you or putting words in your mouth.

Your Testimony

Testify Truthfully

The most important thing about a Social Security disability hearing is to 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 a while, 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 a job.

Many people think that since they are dealing with the government, 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, the judge is likely to 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.

Areas of Testimony

Questions are going to be asked of you at the hearing about your:

  1. Work history.
  2. Education.
  3. Medical history.
  4. Symptoms.
  5. Your estimate of your work limitations.
  6. Your daily activities.

Work and Educational History

For work history, you will be asked to describe the job duties of your last job and all significant jobs you’ve had during the past 15 years. The judge will want to know how much weight you had to lift on each job and approximately how much time during the workday that you spent sitting, standing and walking on each job. The judge will also be interested in difficulties you had performing past jobs because of your health and why you left each former job, especially your last job.

The judge will also ask about job skills. If you have had semi-skilled or skilled work, it is important that you describe your skills accurately. Remember, though, this hearing is not a job interview in which people often have a tendency to try to “puff up” their job skills. Just state the straight facts.

One test for determining the degree of skill involved in a job is how long it takes to learn to do that job. Be prepared to estimate how long it would take for an average person to learn to do your past jobs.

For education, you’ll be asked the highest grade you completed in school, whether you had any training in the military, whether you have had any formal vocational training or on-the-job training.

If you have difficulty explaining why you can’t now perform one of the jobs that you have done in the past 15 years, you’ll want to go over this with your lawyer before your hearing. If you have recently completed some schooling that might qualify you for a skilled job, be sure your lawyer knows about this schooling.

Medical History

Sometimes there are no questions whatsoever about your medical history. The judge will have your medical records from doctors, hospitals and others who have treated you and may let the medical records speak for themselves. It is your lawyer’s job to see to it that all of the medical records the judge needs to see are in the hearing exhibit file and, when necessary, that there are letters from your doctors explaining your medical condition and their opinions about your limitations.

The judge may ask a few general questions about your medical history. The judge ma
y want to know how often you see your doctor, what sort of treatment your doctor provides, what medications you are taking, how often you take them, how well the medications work and whether there are any side effects. You may be asked to describe the symptoms and treatment of your medical condition since it began, what doctors you have seen, where and when you were hospitalized, and so forth.

You will not be expected to explain technical medical things to the judge. Unless you are asked, it’s better not to even try to explain what your doctor has told you, what your friends have told you or what you have read about your medical problem unless you have first cleared it with your lawyer. However, if the judge asks you what your doctor has told you about your condition or your limitations, do your very best to quote your doctor as accurately as possible.

Symptoms

Symptoms are how you feel. No one knows how you feel better than you. You know where you hurt and when you hurt. You know when you get short of breath or dizzy or fatigued. So it’s up to you to describe those symptoms to the judge in as much detail and as vividly as possible. After all, it’s these symptoms that keep you from working. It’s not because you have some particular label of disease like arthritis or a heart condition or a lung condition that you are unable to work. You cannot work because of how you feel.

So if the judge says to you, “Why can’t you work?” Don’t say, “It’s because I have arthritis.” Lots of people with the same impairment can and do work. So telling the judge the name of your health problem really tells the judge nothing. What the judge needs to know is the severity of your pain and other symptoms.

Be specific when you describe your symptoms. Don’t just say, “It hurts.” Describe what your symptoms feel like, the same way you have probably described your symptoms to members of your family. Describe the nature, intensity, and location of pain, whether it travels to different parts of your body, how often you have pain, and how long it lasts. Explain if you feel different from day to day. Explain what starts up your pain or other symptoms, what makes your symptoms worse and what helps relieve them.

Describe your symptoms to the judge the very best you can. Be precise and truthful. Don’t exaggerate, but don’t minimize your symptoms either.

If you exaggerate your symptoms in your testimony, if you testify about constant excruciating pain but the medical records don’t back up what you say, the judge will not believe you. The judge is also going to wonder how you made it to the hearing if your pain is so bad, so be careful when you use words such as “extreme” or “excruciating” to describe pain; and don’t say that you “always” or “constantly” hurt or that you “never” get any relief from pain if what you mean is something less.

On the other hand, if you minimize your symptoms by saying they’re not so bad, and a lot of people do, the judge is not going to find you disabled because you will convince the judge that you have few limitations. This is not the time to be brave.

So try not minimize or exaggerate. Describe your symptoms exactly as they are.

Estimate How Often You Have Pain or Other Symptoms

If your symptoms come and go, be prepared to explain how often this happens. Some people don’t give enough information, especially when the frequency of symptoms varies a lot. It is never a good answer to say that something happens “sometimes” or “occasionally” or “once in a while.” The judge won’t know if you have the problem once a day, once a week or once a year. The judge could conclude that this means that your symptoms occur only a few times per year — which is not enough to be disabling. When the frequency of symptoms varies greatly, a lot of explanation and examples are necessary. For example, tell how often symptoms occur in a usual week. If you have weeks with no symptoms, estimate how many weeks out of a month or year are like that. The more information you give about how often you have symptoms, the better understanding the judge will have about why your symptoms keep you from working.

Estimate How Long Your Pain or Other Symptoms Last

For symptoms that come and go, be prepared to explain how long they last. Try to explain this without using the word “sometimes.” Instead, use the word “usually,” then estimate how often the symptoms last longer and how often the symptoms are shorter.

Estimate the Intensity of Your Symptoms

You may be asked if your pain and other symptoms vary in intensity. If so, do your best to describe how your pain and other symptoms vary in intensity during a usual day or over a usual week.

Often it is best to use the 1 to 10 scale sometimes used by therapists and doctors. On this scale, 1 is essentially no pain and 10 is the worst pain you’ve ever had. Be sure you understand this scale and use it correctly without exaggerating. Think about the worst pain you ever had. Did it cause you to go to the emergency room? Did you lie in your bed writhing in pain, finding it difficult to get up even to go to the bathroom? Did it cause you to roll up into a fetal position? These are the images that the judge will have about what it means to have pain at a 10 level. Some people with disability claims have pain that gets to this level once in a while; however, most do not. People who testify that their pain is frequently at the 10 level do not understand the scale. Most judges will conclude that someone who testifies during a hearing that his or her pain is at a 10 level is dishonest because judges think there is no way a person could be at a hearing with pain that bad.

Estimate Your Limitations

The judge will ask you how far you can walk, how much you can lift, how long you can stand, how long you can sit, etc. You must give the judge a genuine estimate of what you can do. Therefore, it is important to think about these things before your hearing.

If a friend asks you how far you can walk, you probably start thinking of places you have walked to recently, how you felt when you got there, whether you had to stop and rest along the way, and so forth. You are likely to answer your friend’s question by giving one or more examples of walking someplace recently. If the judge asks this question, answer it the same way. Talk to the judge the same way that you would talk to an old friend.

A Social Security disability hearing is not a court hearing. If you are familiar with court hearings or have watched lawyer shows on television, wipe such things from your mind. In court hearings, lawyers are always advising people, “don’t volunteer.” What lawyers mean, of course, is don’t give any examples or details, wait for the lawyer to ask. In Social Security hearings, this rule does not apply and, indeed, if you don’t “volunteer” information, you will not be giving the judge the necessary information to decide your case.

Below are some examples. You decide which testimony is best.

The person who has been advised by a lawyer not to volunteer in answering a question may answer this way:

Judge: How far can you walk?
Claimant: Two blocks.

A person who talks to a judge the same way he talks to a friend, as we’re advising you to do, will answer the question this way:

Judge: How far can you walk?
Claimant: Judge, I can’t walk more than about two blocks without stopping to rest. Just yesterday, I went to the store, which is only about a block and a half from my house. By the time I got there, my back felt like it had a hot spike driven into it. I started limping. All I bought at the store was a loaf of bread. I could barely carry it home. On the way home, I had to stop three times because my back hurt so much. When I got home I sat down in my recliner chair and put my legs up before I even put the bread away.

As you can see, the person who talks to the judge as an old friend provides a lot of important information, some good examples and some relevant details.

Also, be aware that there is a built-in problem with the way questions are asked about how long you can stand, how much you can lift, how far you can walk, and so forth. Judges always ask the question in just this way: “How long can you stand?” The question should not be interpreted to mean, “How long can you stand before you are in so much pain that you must go home and go to bed?” If you interpret the question this way and say “one hour,” without any explanation of your answer, you’re likely to lead the judge to think you can stand much longer than you really can on a job. What the judge needs to know is how long you can stand in a work situation where you must stand for a while, are allowed to sit down, and then must stand again, repeating this several times during an 8-hour workday.

Many times it is best to answer the question more than one way. You might give the judge an example of overdoing it and having to go lie down. But if you give the judge that example, be sure to fully explain it. For example, explain that when you washed Thanksgiving dinner dishes for an hour, you had to go lie down for a half an hour. Otherwise, it will show up in the judge’s decision that you have the capacity to stand for one hour at a time, when your true capacity in a work situation is much less. But also give other examples that demonstrate the work situation: for example, if you are going to stand for a period of time, then sit, then stand again, this second standing time may be much shorter.

The problem that we have with the way these questions are asked is even worse when the question comes to sitting. This sort of exchange happens all the time:

Judge: How long can you sit?
Claimant: Twenty minutes.

When the judge hears this answer, the judge may look at a clock and write down that the claimant had been sitting there for 40 minutes when that question was answered. Thus, the judge could conclude that the claimant is a liar.

What this claimant meant, of course, is that he could sit for 20 minutes in a work situation, then stand or walk for a while and return to sitting. In all likelihood, a claimant with a sitting problem, after forcing himself to sit through an hour-long Social Security disability hearing, will go home and lie down for a long time in order to relieve the pain in his back. He answered the question truthfully. He can sit for only about 20 minutes in a work situation. If he forces himself, he can sit longer but then it takes some time to recuperate. It is important to explain all this to the judge so that the judge can understand what you are able to do day in and day out in a work situation.

Some people testify that after sitting for a period of time they need to shift in the chair; however, this is a point barely worth making since all of us shift in our chairs. There is virtually no vocational significance of needing to shift in a chair; a person can shift and go right on working.

Here is an example of a good answer to a question about sitting:

Judge: How long can you sit?
Claimant: If I force myself, I can sit here for perhaps a whole hour; but after this, I’ll have to go home and lie down, and I won’t be much good for the rest of the day. When I am trying to do things around the house, like pay bills, I only sit for about 20 minutes at a time and then I get up and walk around for 15 or 20 minutes before I go back to sitting. If I were on a job where I could change positions between sitting and standing or walking, the length of time that I could sit would get shorter as the day wore on. Sitting is really hard on my back. It’s better, though, if I can sit in my recliner chair with my legs up. I can sit in that chair for a long time but I find it really hard, for example, to pay bills sitting in that chair. I usually sit at the dining room table when I pay bills.

It is useful to provide information about what you need to do after sitting for a while. Can you sit for a while and then stand up, stretch, and sit back down and continue working? Do you need to alternate sitting and standing? Can you alternate sitting and standing at a work station all day long? Do you need to walk around after sitting or standing in one place? If so, how often do you need to walk around? How long do you need to walk around each time?

Most jobs give breaks from work every couple of hours. Do you need extra breaks from work? What do you need to do on such a break? Sit? Walk around? Lie down? Sit in a recliner? How often during the workday do you need such breaks? How long should each break be?

The judge or your lawyer may ask you how long out of an 8-hour working day you can sit. What the judge needs to know is the total length of time during an entire 8-hour working day that you are capable of sitting, even though sitting is in short stretches. You’re going to have to think about this before the hearing so that you can give a realistic estimate. The judge may also want to know the same about standing.

Sometimes a problem for testimony comes up if you have good days and bad days. For example, on good days, you might be able to sit, stand or walk for much longer than you can on a bad day. If you have good days and bad days, describe what it’s like on a good day and what it’s like on a bad day. Be prepared, though, for the judge to ask you for your estimate of how many days out of a month are good days and how many days are bad days. A lot of people answer such questions as, “well, I never counted them.” Count them. The judge will need this information.

Details. Details. Details. The more specifics that you can provide, the easier it is for the judge to understand your testimony about your symptoms and your limitations.

To give good testimony about your limitations, it is really important for you to know yourself, know your limitations, and neither exaggerate nor minimize them. This is hard to do. You will need to think about it, perhaps discuss your limitations with family members and definitely discuss these limitations with your attorney before the hearing.

Mental Limitations

This website is not intended to help prepare people to testify who have only mental limitations, since the issues in such cases are different in many ways from those we have been discussing; and it is difficult to make general statements about how to prepare for such cases.

If your case involves only mental limitations, you and your lawyer will need to go through these matters before the hearing. For those with mental limitations in combination with physical impairments, it is also necessary to discuss the mental limitations with your lawyer prior to your hearing. However, there are a few things that we can say about mental limitations in combination with physical impairments.

Many people who have serious physical problems, especially if they have been having pain for a long time, develop emotional aspects to their physical impairments. This is so common that it is surprising to find someone with a long-term physical problem who doesn’t also have some emotional problem. However, many people who suffer physical impairments are afraid to talk about this emotional component of pain for fear they will be viewed as crazy. Having such problems doesn’t mean you’re crazy; it probably means you’re normal.

It is important for you to be willing and able to describe any emotional problems you have because it is often the emotional aspect of pain that interferes the greatest with the ability to work. Common problems include:

  • Difficulty concentrating.
  • Forgetfulness.
  • Nervousness.
  • A quick temper.
  • Difficulty getting along with others.
  • Avoiding other people.
  • Crying spells.
  • Depression.

If you have some of these problems, you may also be asked about your ability to do the following:

  • Understand, carry out, and remember instructions.
  • Make judgments.
  • Respond to supervisors, co-workers and usual work situations.
  • Deal with changes in a routine work setting.

You may be asked how well you deal with stress, which, you must remember, is a very individual thing. Different people find different things stressful. If the judge asks you about how well you deal with stress, be sure to tell the judge what sorts of things you find stressful, especially things at work.

Sometimes claimants have trouble putting their fingers on exactly what it is about work that they find stressful. Here’s a list of examples of things some people find stressful in work:

  • Meeting deadlines.
  • Completing job tasks.
  • Working with others.
  • Dealing with the public.
  • Working quickly.
  • Trying to work with precision.
  • Doing complex tasks.
  • Making decisions.
  • Working within a schedule.
  • Dealing with supervisors.
  • Being criticized by supervisors.
  • Simply knowing that work is supervised.
  • The monotony of routine.
  • Getting to work regularly.
  • Remaining at work for a full day.
  • Fear of failure at work.

Sometimes people find routine, repetitive work stressful because of the monotony of routine, lack of opportunity for learning new things, little opportunity for decision-making, lack of collaboration on the job, underutilization of skills, or the lack of meaningfulness of work. Think about whether you find any of these things particularly stressful. If so, discuss them with your lawyer.

Daily Activities

Judges always ask about daily activities. They ask how you spend a usual day. They use your description to figure out whether or not your daily activities are consistent with the symptoms and limitations you describe. For example, if you claim to have trouble standing and walking because of severe pain in your legs, but you testify that you go out dancing every night, the judge is going to have some reason to doubt your testimony about your symptoms and limitations.

The judge’s questioning about your daily activities provides you with a golden opportunity to help your case by giving a lot of details. Here are some examples of what happens if you don’t give details:

Judge:What do you do on a usual day?
Claimant: Nothing.

This is not a good answer. Sitting and staring at a television set is doing something; sitting and staring out the window is doing something; sitting and staring at a blank wall or at the ceiling is doing something. So describe to the judge what you do; but don’t do it this way.

Here’s another bad example:

Judge: What do you do on a usual day?
Claimant: Oh, I do some cleaning, cooking, straightening up the house, sometimes some laundry and going to the store.

This is a truthful answer since this person does all of these things; but it doesn’t help his case at all. He has left out all of the important details. He failed to mention the fact that he cleans for only a few minutes at a time; he cooks only simple meals because he can’t stand in the kitchen long enough to do anything more elaborate; he has help doing the laundry; he never goes to the store alone; and he always takes along his 15-year-old son to carry the groceries. He also failed to mention that he sits in his recliner several times during the day to relieve the pain in his back. In other words, the brief description of the things that he did during the day does not support his testimony about disability. But, the details about how he goes about doing these things do help his case.

To help the judge “live” your day with you, run through your usual day hour by hour. Emphasize those things that you do differently now because of your health problems. If you stop and think about it, you’ll probably be able to come up with a long list of things you do differently now than you did before you became disabled. These things are important because they show how your disability has affected your life.

Describe how long you do an activity and how long you rest afterwards. Tell where you rest, whether it’s sitting or lying down, whether it’s on the couch or the bed or a recliner chair. Tell how long it takes you to do a project now compared to how long it used to take you. Describe all those things that you can’t accomplish without help from other people—and tell who those other people are and what help they provide.

Some Things Not to Do

1. Don’t argue your case. Your job is to testify to facts, describe your symptoms, give estimates of your limitations, outline your daily activities, and provide lots of examples of your problems. Leave arguing your case to your lawyer. For example, don’t use the line that starts with “I worked all my life….” or don’t say, “I know I can’t work.”

2. Don’t try to draw conclusions for the judge. Let the judge draw his or her own conclusions. Don’t say things such as, “If I could work, I would be working,” or “I want to work.” If you say any of these, it may cause the judge to think about Stephen Hawking who is in a wheelchair and unable to speak but is the world’s leading expert on theoretical physics. There are many exceptional people with extreme disabilities who work; but that is not the issue in a Social Security disability case. It is also not relevant that there may be people less disabled than you who receive disability benefits.

3. Don’t compare yourself to others. Popular lines are:
“I know a guy who has nothing wrong with him but he gets disability benefits.”
“I know people less disabled than me who get disability benefits.”
“If I were an alcoholic you’d give me disability benefits.”
None of these comparisons helps your case.

4. Don’t try to play on the judge’s sympathy. It won’t help and it might backfire. Judges have heard it all. Your financial situation, the fact that the bank is going to foreclose on your house and so forth are not relevant.

5. Don’t try to demonstrate what a “good” person you are. Benefits are not awarded to the virtuous; they are awarded to the disabled. Sometimes claimants bring up things on their own only to demonstrate their virtue, thinking that this will influence the judge. Don’t do it. This is just like trying to play on the judge’s sympathy. It doesn’t work and it may backfire.

6. Don’t tell the judge what an honest person you are. Many genuinely honest claimants think that they need to tell the judge just how honest they are. Such a claimant may say, “I am an honest person.” Don’t do this. Your honesty will be demonstrated by your truthful testimony on relevant matters. Telling the judge you are honest may backfire.

7.Don’t engage in dramatics. You are supposed to tell the truth at your hearing. If you are putting on a show for the judge, that is the same thing as not telling the truth. (At the same time, however, if you are having a genuine problem at the hearing and you need to stop the hearing for any reason, tell the judge and your lawyer.)

8. Don’t give irrelevant testimony. Social security regulations contain a list of irrelevant areas of testimony—areas that the judge can’t and won’t consider in deciding your case. This list is in the regulations:

(a) The fact that you are unable to get work is not relevant.
(b) The lack of work in your local area is not relevant.
(c) Hiring practices of employers are not relevant.
(d) Technological changes in the industry in which you have worked are not relevant.
(e) Cyclical economic conditions are not relevant.
(f) The fact that there are no job openings is not relevant.
(g) The fact that you would not actually be hired for a job is not relevant.
(h) The fact that you do not wish to work at a particular job is not relevant.

Also, it doesn’t matter that a particular job doesn’t pay well enough to support your family.

Problem Areas

There are three areas where there could be potential problems. If any of these three things apply to your case, be sure to bring them to the attention of your lawyer before the hearing.

1. Think back over the 15 years before you became disabled. Pick out your easiest job. If you have trouble explaining why you can’t now do that easiest job, even if that job no longer exists, be sure to discuss this with your lawyer.

2. If you received unemployment compensation at any time during the period that you are claiming to be disabled, make sure your lawyer knows about it before the hearing.

3. If you have been looking for work during any period that you claim to be disabled, tell your lawyer about it before the hearing.

Things to Do

Here’s a list of things to do at your hearing:

  1. Tell the truth.
  2. Neither exaggerate nor minimize your symptoms.
  3. Know your present abilities and limitations.
  4. Provide relevant details and concrete examples, but don’t ramble on.

After the Hearing

When You Get Your Decision

When your decision arrives, make sure that your lawyer received a copy. Your copy and your lawyer’s copy of the decision are supposed to be sent to each of you on the same day. However, every once in a while, because of a hearing office mistake, your lawyer may not be sent a copy of the decision. When this happens, your lawyer doesn’t know what is going on in your case. Your lawyer won’t know, for example, whether the favorable decision contains an error that needs to be corrected right away; your lawyer won’t be able to monitor payment of your benefit; and your lawyer won’t know if you received a denial decision that needs to be appealed.

So, win or lose, call your lawyer’s office when you get a decision to find out if your lawyer received a copy.

If You Lose

Sometimes good, well presented cases are lost. It is hard to figure out why, but it happens. There are usually some possibilities for appeal. If you lose, be sure to consult with your lawyer right away about appealing your case. Do this as soon as possible. It is absolutely essential that you appeal to the Appeals Council within 60 days of the judge’s decision or you will lose your right to appeal.

Attorney Fees

If your fee agreement with your lawyer calls for the attorney fee to be 25 percent of back benefits up to a maximum amount set by the Commissioner of Social Security (currently $6,000), the Social Security Administration will withhold the attorney fee and, assuming neither you nor the judge objects to the fee, SSA will send that money to your lawyer. Although it’s your money, you’re not involved in paying it. But you will have to pay expenses directly to your lawyer if your fee agreement calls for you to reimburse your lawyer for expenses.

Answers to 14 common questions

By Your disability hearing

Frequently Asked Questions About Social Security Disability Hearings

People who apply for Social Security disability benefits frequently ask the following questions about the progress of their Social Security disability application.

How long will it take for a hearing to be held, a decision to be issued and for benefits to be paid?

The time between when a person requests a social security disability hearing until a decision is issued varies a lot. Nationally, hearing offices averaging 15.5 months from the date of a hearing request until the decision is issued. Some states don’t take that long and others take longer.

After the hearing, unless the judge issues a bench decision at the hearing, it takes an average of two to three months for a decision to be issued.

After that, if you are awarded disability benefits, it takes a month or two for current benefits to start being paid. From the date of the decision, it can take from one to five or six months for all back benefits to be paid, sometimes longer when there is SSI involved. Thus, all this takes a long time, much longer than it should.

Unfortunately, there are few opportunities for your lawyer to speed things up. About all your lawyer can do is try not to slow things down.

How will I be notified about the date of my disability hearing?

You should hear from your lawyer first. The judge’s assistant will telephone your lawyer before scheduling your hearing to make sure that your lawyer has the date available. As soon as your lawyer hears from the judge’s assistant, he or she will send you a letter. After you get the letter from your lawyer, you’ll get a Notice of Hearing from the judge.

What happens if I get a Notice of Hearing before I get a letter from my lawyer telling me about the date?

It may be that someone failed to call your lawyer about your hearing. So, if you get a Notice of Hearing before you get a letter from your lawyer telling you the date of your hearing, call your lawyer immediately.

Do I need to get medical records or reports for my lawyer?

No. You don’t have to get any medical records or reports yourself. In fact, it’s better if you do not even try to get such things unless your lawyer asks you to.

But what if my doctor gives me a report?

If you happen to get something such as a disability form completed by your doctor for an insurance company, etc., be sure to send your lawyer a copy.

What if the Judge sends me a form to be completed by my doctor?

Sometimes a claimant may be sent a form to be completed by a doctor concerning how much work the claimant can do. If the judge sends you a form to be completed by your doctor, telephone your lawyer so that the two of you can discuss how to deal with this. Your lawyer may want you to send the form to him.

Should I send anything to the judge?

No. As a rule, do not send anything of any substance to the judge without your lawyer seeing it first.

Should I send my lawyer the “acknowledgment” that comes with the Notice of Hearing?

No. There will be a paper sent to you with your Notice of Hearing that you must mark to indicate that you’ll be coming to the hearing. This paper is called an Acknowledgment of Notice of Hearing. You may send the “acknowledgment” directly back to the judge. Your lawyer doesn’t have to see it. But don’t send anything else to the Social Security Administration without your lawyer seeing it first.

Will I have to fill out any forms before my hearing?

Yes. Usually the judge will send you some forms to complete about recent medical treatment, what medications you’re taking, etc. Complete these forms as soon as possible after you get them and send them to your lawyer. Your lawyer will forward them to the judge.

What will my lawyer do to prepare for the hearing?

Your lawyer will review your Social Security file and will figure out what is needed to prove to win your case and how to prove it. Your lawyer will get the necessary medical records and other records. Your lawyer will obtain reports from your doctors, if necessary. And your lawyer will meet with you a day or so before your hearing to get you prepared to testify. Your lawyer will also talk with any witnesses from whom we may want to present testimony at your hearing.

What can I do to help get ready for my disability hearing?

Think about who might be a good witness — someone who knows you well, who knows all the problems you’ve been having lately and who can describe them for the judge.

Most people use as witnesses their spouse, another family member, or a close friend because usually they are the ones who know them the best and there really isn’t anyone else. Such witnesses are fine. They are truthful, good witnesses. However, sometimes a judge will think that close friends or family members bend over backwards to help a claimant. Therefore, often the very best witnesses are people who are not as close and who might be considered more objective.

Some people who have applied for social security disability benefits have suggested as witnesses former supervisors, coworkers, social workers, vocational rehabilitation counselors, ministers, landlords, neighbors, etc. If you have an idea for having someone like this to be a witness, call your lawyer about it when you receive the letter from your lawyer notifying you of your hearing date.

Should I try to get letters from friends and relatives about my disability?

Letters from friends, relatives and other people can be very useful in a social security disability case. As a rule, the more such letters, the better. If you want, your lawyer can provide you with a memo to distribute to friends and relatives that explains how to prepare such a letter.

Should I telephone my lawyer whenever I see a doctor?

No. It is not necessary to telephone your lawyer about routine medical care. But keep track of the dates of all medical treatment between now and the time of your hearing.

When your lawyer sends you the letter about your hearing date, he or she will probably send you a form to complete to describe all of the medical care you’ve received since you first met with your lawyer.

It is important for your lawyer to have complete names and addresses of all treating sources. Therefore, help your lawyer by gathering business cards for all doctors, therapists, etc., and sending them to your lawyer when you are asked for a medical care update.

Under what circumstances should I telephone my lawyer?

There probably will be little need for you to telephone your lawyer to discuss your case prior to the time your lawyer notifies you of when your hearing will be held.

However, you should telephone your lawyer if one of the following things happens:

  • There is a dramatic change in your condition — either for the worse or the better.
  • Your doctor gives you a new diagnosis of your medical condition.
  • You are hospitalized.
  • You go back to work.
  • You are thinking about going to work full-time or part-time.
  • You change your address and/or telephone.
  • Someone from the Social Security Administration contacts you.
  • You get a letter from the Social Security Administration that you don’t understand.
  • You get a Notice of Hearing without first getting a letter from your attorney telling you the date of your hearing.
  • You get a form from the judge to be completed by your doctor.

And, feel free to telephone your attorney if at any time you have a question about your case.