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Social Security Disability Library

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.

March 27, 2014
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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.

March 20, 2014
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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.

March 13, 2014
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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 fact