Category

Your disability hearing

How the Social Security Administration Evaluates Your Symptoms

By English Blogs, The disability evaluation process, Your disability hearing

A Lowell Disability Attorney Explains How the Social Security Administration Evaluates Your Symptoms

Lowell Disability AttorneyOne of the questions frequently asked of a Lowell disability attorney at the Palma Law Offices, PC, is about how the Social Security Administration assesses symptoms people report in their applications for Social Security disability or supplemental security income. Your Lowell Social Security disability attorneys will explain how the Social Security Administration uses your medical evidence to try to determine how your symptoms affect your ability to work and your functional capacity.

How the Social Security Administration Evaluates Your Medical Evidence

Your Lowell Social Security disability attorneys will work with you to gather the medical evidence you will need to support your application. Once that evidence is submitted to the Social Security Administration, the agency will begin its evaluation process. The observations your medical professionals and others have made about how your symptoms affect you are highly important since symptoms are difficult to measure and are more readily observed. The Social Security Administration will look for information about the onset of your symptoms, their nature, things that aggravate or cause them, their progression over time and how often they occur. The agency will also look for information about any treatment and medications you have received for your symptoms and how well they worked. The agency will also try to decide if something else, such as a mental health issue, could instead account for your symptoms.

History of Treatment

One thing your Social Security disability attorney will stress to you is the importance of you continuing to attend all treatment appointments with your doctor and other medical professionals. Being able to demonstrate that you have sought treatment for your symptoms over time can help you increase the likelihood that your claim will ultimately be successful. In addition to attending appointments, it is equally important for you to follow all of the treatment recommendations that you are given. You may be deemed to be less credible if your claims do not match a provided treatment history.

Contact a Lowell Disability Attorney

To speak with a Lowell disability attorney at the Palma Law Offices, PC, call (888) 295-4955.

Your testimony

By Your disability hearing

Your Testimony at Your Social Security Disability Hearing

The following questions are the types of questions that the Administrative Law Judge (ALJ) or your attorney may ask you during your Social Security disability hearing.

Not all of these questions will be relevant to your Social Security case, and for some of the questions the answers may not matter too much to the judge’s decision about your disability benefits.

However, it is important for your testimony to show your individual limitations, and these questions show you the types of things that may come up at your disability hearing.

Background, Age, Education and Vocational Training

  • Name, address, Social Security number.
  • Date of birth, age today, age at onset of disability.
  • Highest grade completed in school.

If you did not complete high school:

  • Did you get a G.E.D.?

If you are not fluent in English:

  • Where were you born?
  • What language did you grow up speaking?
  • Where were you educated?
  • When did you come to the United States?
  • What language is spoken at your home today?
  • Who reads the mail at your house?
  • Are you able to read in another language?

In mental retardation and similar cases:

  • Did you attend regular classes or special education classes?
  • How well did you do in school?
  • If an 8th grade reading level is average, would you say that you’re at least an average reader?

If you are less than an average reader:

  • Can you read and understand a newspaper?
  • Can you “read or write a simple message such as instructions or inventory lists”?

If you are illiterate:

  • Who does your reading for you?
  • How have you handled job applications?
  • How did you get a driver’s license?
  • How have you managed to deal with SSA forms?
  • Can you multiply and divide/add and subtract/make change?
  • Describe any vocational training; was it completed? When?
  • Describe any on-the-job training. When?
  • Describe any training in the military. When?

Work Experience

For work to be “past relevant work” it must have been done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity.

Thus, for all work during 15 years prior to date of adjudication or prior to last date insured if that date is earlier, you may be asked about the following:

1. Job background information:

  • Name of employer
  • Approximate dates of employment
  • Name of job
  • Job duties
  • Full time or part time
  • Length of employment
  • Did you do this job long enough to learn the job and develop “the facility needed for average performance”
  • Earnings (relevant to SGA issue and in assessing skill level)
  • Why did you leave this job?
  • Before you left this job, did your impairment cause you to miss work, do a poor job, change job duties, change hours of work, etc.?

2. Exertional level:

  • Heaviest weight lifted/carried
    • How often did you lift/carry this much?
    • What objects weighed this much?
    • How far did you carry them?
  • Average weight lifted/carried
    • How often?
    • What objects?
    • How far?
  • How much sitting and standing/walking in an eight-hour working day?
  • Did the nature of this job allow you to sit, stand or walk as you chose?
  • How much bending? Any crawling, climbing, balancing?
  • How much manipulative ability was required?

3. Environmental limitations:

  • Describe work environment: temperature, wetness, humidity, noise, vibration, fumes, odors, dusts, gases, hazards (e.g. machinery, heights).

4. Skill level:

  • How long did it take to learn to do this job?
  • Describe machines, tools and equipment used.
  • Describe any technical knowledge or skill used on this job.
  • Describe any writing or completing reports.
  • How much independent judgment was required?
  • Describe any supervisory responsibilities: how many people? Did you complete work evaluations? Have any hiring/firing responsibilities?

5. Stress level:

Where stress tolerance is an issue:

  • What was it about this job that you found stressful? e.g., speed, precision, complexity, deadlines, working within a schedule, making decisions, exercising independent judgment, working with other people, dealing with the public (strangers), dealing with supervisors, being criticized by supervisors, simply knowing that work is supervised, monotony of routine, getting to work regularly, remaining at work for a full day?

6. Meeting your burden of proof:

  • Why can’t you do this job now?

Or, if no longer insured for Title II:

  • Why couldn’t you do this job as of [the date last insured]?

Medical History

Medical history is established by the medical records. Most ALJs have read the medical records and taken notes on them for use at the hearing. Thus, detailed testimony about medical history is not necessary in most cases.

Because of the requirement that you be disabled for 12 months, it is the plateaus, not the valleys or peaks, that are most important in a Social Security disability case.

Your medical history can establish a time frame for the your testimony about the plateaus.

The degree to which the judge or your attorney will ask about your medical history depends on the nature of your case. Cases in which more development of medical history is necessary include those involving virtually every known treatment for pain, unusual impairments, unusual treatment or especially cryptic medical records where testimony from the claimant will educate the ALJ.

If medical history is required, your attorney may asked the following types of questions:

Q: You injured your back at work on January 15th, 20__, didn’t you?

Q: And you never went back to work after that, did you?

Q: Your condition continued to get worse, you had numerous medical tests which found a ruptured disc, and you had surgery on May 15, 20__, didn’t you?

Q: During the summer of 20__ you recovered from the immediate aftereffects of surgery, didn’t you?

Q: And wouldn’t you say that as of September 15th of 20__, the day your doctor told the worker’s compensation insurance carrier that your condition had plateaued, your symptoms then were pretty much the same as they are now?

Current Treatment

While, as a rule, testimony about past medical treatment should be kept to a minimum, you may be asked a lot of questions about current, on-going treatment, and any lack of ongoing treatment should be fully explained.

You may be asked the following:

  • Names of those treating you now.
  • Their specialties.
  • Length of relationship.
  • Frequency of treatment.
  • Which condition does this doctor, therapist, etc. treat?
  • What treatment does he provide?
  • How much has this treatment helped?
  • What medication do you take now? How much do you take each time you take it? How often do you take it? Are there any side-effects? How much does it help and for how long?
  • If no regular treatment/medication, why not?

Physical Symptoms

If the main issue in your disability hearing is the extent of your physical impairment, then your description of your symptoms is the most important part of your testimony. If you can give a credible, vivid description of your symptoms, then you will have taken a giant step toward winning your case.

The following types of questions cover different aspects of physical symptoms of disability.

General Physical Symptoms

Pain

Description of the pain:

  • What is nature of your pain?
  • What is the location of your pain?
  • What happened to cause you to have this pain?
  • How long have you had the pain?
  • Has there been any significant period since it started that the pain was in remission?
  • If so, what caused the period of remission (e.g., medication, surgery, physical therapy)? How long did the remission last?
  • What does the pain feel like?
  • Is it tender to touch?
  • Does it limit the amount you can bend the affected joint? How much?
  • Is the quality of the pain always the same or is it sometimes different? If so, how and when is it different?
  • Show us where this pain is located. (Your attorney might then say something like “Let the record reflect that the claimant is pointing to his low back at the beltline.”)
  • Is this pain constant or does it come and go?
  • If it comes and goes:
    • How often does it come?
    • How long does it last?
    • How many hours per day/days per month do you have this pain?
    • What sorts of things bring on this pain?
    • What relieves it?
  • Do you have muscle spasms?
  • How severe is your pain? If we use a ten-point scale with ten being the most severe pain you’ve ever had, how would you rank the pain you’ve been telling us about?
  • Is it always of the same intensity? If not, how often is it at each intensity?
  • What increases the intensity of your pain? Is it affected by movement, activity, staying in one position, environmental conditions or stress?
  • Does the pain ever radiate, such as going down one of your legs? If so:
    • Which leg?
    • What route does it travel? Be specific.
    • What does it feel like when it goes down your leg?
    • How often does this happen?
  • Is there any numbness or pins-and-needles feeling associated with this pain?
  • Are there any other symptoms associated with this pain, such as redness, swelling, heat, stiffness, crepitus (crackling noise heard when joint moves), muscle weakness, muscle atrophy, fatigue, appetite loss, weight loss?

Treatment for the pain:

  • How often do you see your doctor?
  • What does your doctor do for you?
  • How is the pain affected by medication?
  • Do you have side effects from pain medication such as drowsiness, dizziness, lack of concentration, slow reflexes, nausea?
  • What treatment other than medication have you tried, such as transcutaneous nerve stimulator (TENS unit), physical therapy, massage, “back school” (training in back exercises and mechanics), bio-feedback, hypnosis, psychological therapy, chiropractic manipulation, acupuncture, Hubbard tank, traction, exercises, injections, pain clinic? How much have these things helped?
  • What home remedies have you tried, such as hot baths, heating pads, ointments? How much have these things helped?
  • Is the pain helped by limiting your activities, lying down, shifting positions frequently, sitting in a special chair, etc.?

Resulting restrictions:

  • How has this pain affected your life?
  • Do you use assistive devices? (For example, cane, brace, cervical collar, special door handles, gripping devices, bathtub or shower bars, special chair.)
  • Are your daily activities affected (including relationship with others, sleep, hobbies, etc.)?
  • Are you irritable, depressed, worried, anxious, have difficulty concentrating, or remembering?
  • How has the pain affected your capacity for work? See mental and physical residual functional capacity.

Shortness of breath:

  • What brings on shortness of breath?
    • Cardiac chest pain?
    • Lung congestion?
    • Asthma?
    • Weather changes?
    • Allergies?
    • Speaking?
    • Exertion?
    • Lying down?
    • Hyperventilation?
    • Stress?
    • Panic attacks?
  • Describe how it feels when you are short of breath.
  • How many pillows do you use when you sleep?
  • How many stairs can you climb before you become short of breath and have to stop?
  • How fast do you walk?
  • How far can you walk before you become short of breath and have to stop?
  • Are you bothered by dust, fumes, gases? If so, to what degree do you need to be in a clean environment?
  • How often do you wheeze?
  • How often do you have lung infections?
  • How often do you have acute episodes of breathing problems?
    • What brings on these acute episodes?
    • How long does each episode last?
    • What are your symptoms during acute episodes?
  • How often would you miss work because of your breathing problems?
  • If you were at work, would you need to take unscheduled breaks? If so, do you expect that this would occur daily, weekly, several times per month? Would you need to sit down or recline?

Fatigue:

  • When did you begin feeling fatigued?
  • Did fatigue come on gradually or all at once?
  • Describe your fatigue.
  • Is it the same as being weak? physically tired? lacking energy?
  • Is it the same as being drowsy or sleepy?
  • When you are fatigued, how would you describe your level of motivation to do anything?
  • Is your fatigue associated with a lack of patience?
  • What things make your fatigue worse?
    • Physical activity?
    • Stress?
    • Heat?
    • Depression?
  • Give specific examples of things that worsen your fatigue.
    • How much physical activity will bring on fatigue?
    • Give examples of stressful things that you think made your fatigue worse in the past.
    • How much heat brings on the fatigue?
    • Will a hot bath make you fatigued?
  • Is fatigue affected by the time of day? What time of day is worse? What time of day is better?
  • What things make your fatigue better?
    • Rest?
    • Sleep?
    • Positive experiences?
  • How well do you sleep?
  • How long do you need to rest for your fatigue to get better so that you can get up and do something?

Physical Residual Functional Capacity

One of the issues in a Social Security disability hearing is your Residual Functional Capacity (RFC).

The following questions are the type that you might be asked about your residual functional capacity.

When you answer these questions, you should be estimate your capacity to do these activities on a day-to-day basis, 8 hours per day, 5 days per week, approximately 50 weeks per year in a regular work setting.

You should also volunteer examples of your limitations due to your disability.

Sitting

  • Do you have any problem with sitting?
  • How long can you sit:
    • Continuously in one stretch?
    • Total during an eight-hour working day (with normal breaks)?
  • When you sit, can you sit:
    • Without squirming?
    • Without leaning on elbows?
  • Can you sit:
    • At a desk?
    • In an armless office chair?
    • In an office chair with arms?
    • On a backless stool?
    • At a bench?
    • On a high backless stool?
    • On a high stool with a back?
    • In a work-like position?
    • With your arms extended?
    • With hands available to manipulate objects?
    • With neck slightly bent forward?
  • If pain limits your sitting tolerance, describe:
    • Changes in the pain.
    • The way the pain feels (type or quality of pain)
    • Radiation of the pain.
    • Intensity
    • How you try to control the pain (e.g., shifting position in chair, leaning, getting out of the chair)
  • If you must get out of the chair:
    • How long can you sit before getting up?
    • How long can you:
      • Stand?
      • Walk?
      • Lie down?
    • How long is it before you can resume sitting?
  • When you sit is it necessary for you to elevate a leg? If so:
    • Which leg?
    • How long must you elevate it?
    • How high?
  • When you get up from sitting:
    • Do you need help getting up?
    • Do you have difficulty standing when you first get up? If so, why (e.g., dizziness, stiffness, pain)?
    • How long does this problem last?
  • What happens if you try to sit too long? Give examples of sitting; limitations:
    • Driving or riding in a car.
    • Sitting at the dining room table.
    • Eating.
    • Paying bills.
    • Watching a movie.
    • Watching television.
    • Doing crafts.
    • Fishing.
  • Have you had to give up or limit any hobbies because of your problem with sitting?

Alternate Sitting, Standing and Walking Lists

  • Can you alternate sitting with standing? If so:
    • How often do you need to stand?
    • How long must you stand before resuming sitting?
    • Can you work at a bench while standing?
  • Does it depend on the height of the bench?
    • Can you get through an eight-hour working day alternating sitting and standing? If not, how many hours total?
  • Is it necessary for you to alternate periods of sitting with periods of walking?
    • Why?
    • How often do you need to walk?
    • How long, must you walk before you can resume sitting?
    • Can you get through an eight-hour working day alternating sitting and walking? If not, how many hours total?

Standing

  • Do you have any problem with standing?
  • How long can you stand:
    • Continuously in one stretch?
    • Total during an eight-hour working day?
  • When you stand, can you stand:
    • Without moving away from a machine?
    • Without leaning against something?
    • In a work-like position:
      • With your arms extended?
      • With hands available to manipulate objects?
      • With neck slightly bent forward?
  • What happens if you try to stand too long?
  • Examples of standing limitations:
    • Waiting in line.
    • Standing at the stove to cook.
    • Doing dishes at the sink.
    • Waiting for a bus.

Walking

  • Do you have any problem with walking?
  • How long/how far can you walk:
    • Continuously in one stretch without stopping to rest?
    • Total during an eight-hour working day?
  • Can you walk:
    • Without an assistive device?
    • At a normal speed?
  • What happens if you try to walk too far?
  • Do you have any problem keeping your balance on a slippery or moving surface?
  • Examples of walking limitations:
    • Walking the aisles at a grocery store.
    • Walking around the neighborhood.

Lifting and Carrying

  • Do you have any problem with lifting or carrying?
  • How much can you lift or carry:
    • If you only had to do it for up to one-third of a work day?
    • If you had to do it from one-third to two-thirds of a work day?
  • What is the heaviest thing you encounter in your daily life that you can still lift and carry?
  • Describe how you lift/carry these objects.
  • What sorts of things that you encounter in your daily life can you no longer lift and carry?
  • What happens when you try to lift or carry too much?

Postural Limitations

  • Describe any difficulty:
    • Bending at the waist.
    • Twisting.
    • Stooping (bending the spine).
    • Kneeling (bending the legs).
    • Crouching (bending both the spine and the legs).
    • Climbing stairs.
    • Climbing a ladder.
    • Other climbing.
    • Crawling.
  • Can you do these activities:
    • Up to one-third of a working day?
    • From one-third to two-thirds of a working day?
  • What happens if you overdo any of these activities?

Manipulative Limitations

  • Are you left or right-handed?
  • Describe any difficulty using your hands and arms for:
    • Reaching all directions, including overhead.
    • Handling objects (gross manipulation).
    • Fingering (fine manipulation).
    • Feeling.
    • Pushing or pulling.
    • Twisting the wrists.
    • Working with hand tools (e.g., screwdrivers, pliers).
  • Do you have any problem with dropping things?
  • Do your hands ever shake? go numb? have a pins and needles sensation?
  • How well can you perform the following?
    • Opening a jar.
    • Opening a door.
    • Buttoning clothes.
    • Picking up coins.
    • Writing.
    • Washing the dishes.
  • Can you do repetitive hand activities for most of an eight-hour working day?

Traveling

  • How did you get to this hearing today?
  • How often have you left your home during the past (month) (year)?
  • When you go out:
    • Where do you go?
    • Do you usually go alone?
  • If you usually have someone with you when you go out, why don’t you go alone?
  • Do you have emotional problems when you leave your home alone?
    • If so, describe the feelings you have and why it is difficult to leave your home alone.
  • Do you have a driver’s license?
    • If no, have you ever had a driver’s license?
    • Why don’t you have one now?
  • Do you have any special restrictions on your driver’s license? For example:
    • Glasses?
    • Times of day?
    • Speed?
    • Distance?
  • Do you have a handicapped parking permit?
  • Do you have regular access to an automobile?
    • Does it have power or regular brakes and steering?
    • Does it have a standard or automatic transmission?
  • How is driving different for you now than before your health problems became severe?
  • How often do you drive?
  • How long (or far) can you tolerate driving before you have to stop and rest?
    • How long must you rest?
  • What is the greatest distance (or longest time) you have driven in the last year?
    • Did you have to stop during this trip?
    • How many times and for how long?
  • Describe any difficulties with:
    • Getting into or out of a car.
    • Turning your head from side to side.
    • Looking behind you when you drive in reverse.
    • Sitting while you drive.
    • Using your legs while driving.
    • Using your arms or hands while driving.
    • Vision.
  • Do you have emotional problems while driving? For example:
    • Mental confusion?
    • Nervousness or fear?
    • Getting lost?
    • Difficulty keeping your concentration and attention?
  • Are you taking any medications:
    • Which affect your driving?
    • About which you have been warned that you should not drive while taking them?
    • If so, what are these medications?
  • If you have problems driving, how do you get around?
  • Do you have problems being a passenger in a car, either physically (e.g., getting in and out, prolonged sitting) or emotionally (e.g., paranoia, anxiety)?
  • Do you ride the bus or use any other public transportation?
    • If so, how often?
  • Do you have difficulties taking a bus, such as:
    • Walking to the bus stop?
    • Standing waiting for the bus?
    • Climbing the steps into the bus?
    • Sitting on the bus?
    • Standing on the bus?
    • Have you ever fallen while on a bus?
  • Do you have any emotional problems riding buses?
    • If a bus is crowded, do you feel anxious or paranoid?
  • Have you ever gotten lost or missed your stop while riding a bus?
    • What happened?
    • How often has this happened?

Good Days/Bad Days

  • If your capacity widely varies, categorize your days, for example:
    • Good days/bad days.
    • Good days/so-so days/bad days.
  • Describe each kind of day.
  • What are you capable of doing on each kind of day?
  • Would you be going to work on a bad day?
  • How many of each kind of day do you have in a month?

Daily Activities

Background and General Description

  • Do you live in an apartment, a house, a duplex, a condo, a mobile home?
    • Does your house have one story or two?
    • Is your bedroom upstairs or downstairs?
    • How many rooms?
  • What do you do on an average day?
  • Describe your day for us from the time you get up in the morning until you go to bed at night.
  • Give us some examples of things you do differently now than you used to do.

Activities of Daily Living

How are the following things handled at your house?

  • Cooking.
  • Doing the dishes.
  • Grocery shopping.
  • Cleaning.
  • Dusting.
  • Straightening up.
  • Taking out the garbage.
  • Making beds.
  • Changing bed sheets.
  • Vacuuming.
  • Floor mopping.
  • Bathroom cleaning.
  • Laundry.
  • Watching children.
  • Yard work.
  • Grass cutting.
  • Gardening.
  • Snow shoveling.
  • Home repairs.
  • Paying bills/handling finances.
  • Going to the post office.
  • Taking public transportation.
  • Obtaining a telephone number from phone directory or directory assistance.

Social Functioning and Leisure Activities

  • How often do you visit:
    • Family members?
    • Friends?
    • Neighbors?
  • Do you initiate contacts or do they?
  • Do you have any problem getting along with:
    • Family?
    • Friends?
    • Neighbors?
    • Store clerks?
    • Landlords?
    • Bus drivers?
  • How often do you go to church?
  • Do you participate in any organizations?
  • Do you play cards? Other games?
  • Do you attend sports events?
  • Do you go to movies?
  • Do you go out to eat?
  • Do you have any hobbies?
  • How often do you read the newspaper
  • Do you watch television news programs?
  • Do you keep up with current events?

Personal Care

  • Do you have any problem, need any assistance or reminders with:
    • Dressing?
    • Buttoning clothes?
    • Tying shoelaces?
    • Bathing?
    • Combing/fixing hair?
    • Shaving?
  • Do you get dressed every day?

Examples of Limited Activities

  • How much time do you spend daily doing the following:
    • Sitting in your favorite chair? Describe the chair.
    • Watching television?
    • Reading?
    • Talking on the telephone?
    • Sleeping?
    • Lying down?
  • Where do you go to lie down (e.g., bed, couch, recliner)?
  • How often do you drive a car?
  • How often do you go out of the house?
  • When you begin a household task, do you complete it in a timely manner? If not, give examples.
  • Are there any hobbies you have been forced to give up because of your impairment?

Mental Symptoms

If your disability involves mental symptoms, the questions that you will be asked will attempt to get you to talk about your symptoms. For example, after asking whether you have a specific symptom, you will be asked to explain or tell about it.

You want to talk freely about your symptoms so that the judge can make a good evaluation of your qualifications for disability benefits.

Stress

If stress tolerance is at issue, you will be questioned about the specific kinds of things that you find stressful.

There may be questions about examples of stressful things, and for descriptions of what happens to you when you are under stress (e.g., panicky feeling, terror, a feeling of impending doom, fight or flight response, trembling, shaking, palpitations, chest pain, shortness of breath, smothering feeling, choking, feeling faint, unsteady, sweaty, nausea, stomach ache, numbness, tingling, hot flashes, chills, hallucinations, flashbacks, fear of dying, fear of going crazy, fear of doing something uncontrolled).

Questions may relate to the following work demands that some people find stressful:

  • speed.
  • precision.
  • complexity.
  • deadlines.
  • working within a schedule.
  • making decisions.
  • exercising independent judgment.
  • completing tasks.
  • working with other people.
  • dealing with the public (strangers).
  • dealing with supervisors.
  • being criticized by supervisors.
  • simply knowing that work is supervised.
  • getting to work regularly.
  • remaining at work for a full day.
  • fear of failure at work.

The Social Security Administration often takes the position that routine repetitive work constitutes low stress work. But many people find one or more of the following aspects of such work to be stressful:

  • monotony of routine.
  • little latitude for decision-making.
  • lack of collaboration on the job.
  • no opportunity for learning new things.
  • underutilization of skills.
  • lack of meaningfulness of work.

Mental Residual Functional Capacity

You may be asked questions about your ability to deal with the following:

  • Understanding, carrying out, and remembering simple instructions:
    • remember locations and work-like procedures.
    • understand and remember very short and simple instructions.
    • carry out very short and simple instructions.
    • maintain concentration and attention for extended periods (the approximately 2-hour segments between arrival and first break, lunch, second break and departure).
    • perform activities within a schedule.
    • maintain regular attendance.
    • be punctual within customary tolerances.
    • sustain an ordinary routine without special supervision.
    • work in coordination with or proximity to others without being unduly distracted by them.
    • complete a normal workday and workweek without interruptions from psychologically based symptoms.
    • perform at a consistent pace without an unreasonable number and length of rest periods.
  • Use of judgment:
    • make simple work-related decisions.
    • be aware of normal hazards and take appropriate precautions.
  • Responding appropriately to supervision, coworkers, and usual work situations:
    • ask simple questions or request assistance.
    • accept instructions.
    • respond appropriately to criticism from supervisors.
    • get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes.
  • Dealing with changes in a routine work setting:
    • respond appropriately to changes in a routine work setting.

Lay witnesses

By Your disability hearing

Lay Witnesses at a Social Security Disability Hearing

At your Social Security disability hearing, sincere, straightforward lay testimony from your lay (non-expert) witnesses can well be the deciding factor in your disability claim. It is a very rare disability claim under the Social Security Act that does not need good lay witnesses.

Select a Few Good Witnesses

Your attorney will not want all of your friends and family to testify. Instead, you and your attorney will select a few witnesses who can corroborate and, where possible, add to your testimony.

Screen your witnesses carefully. Eliminate those who have difficulty in expressing themselves, those who do not really want to testify, those who do not have good firsthand knowledge of some aspect of the case, and those who have an exaggerated opinion of themselves and their cleverness.

The most common lay witnesses are your spouse, adult children (sometimes minor children), other relatives, and close friends.

Often such close family members and friends are the only people who can provide helpful testimony. However, sometimes ALJs tend to view such people as less objective than neighbors, former employers or co-workers, and other associates, such as members of the same church or union, or members of hobby groups or professional groups. Therefore, depending on the issues in your case, you may want to look for possible witnesses who are outside of your immediate circle of family and close friends and who, therefore, might be properly characterized as more objective.

Prepare Witnesses But Do Not Rehearse Testimony

Your attorney will interview your witnesses ahead of time. This preliminary interview will be mostly devoted to selecting the best witnesses and to telling them how their testimony can be most effective.

However, your attorney will not rehearse the witnesses. It is almost impossible to rehearse a witness so that testimony does not appear to be rehearsed and consequently entitled to less weight. Rehearsed testimony tends to be trite and stilted, to add unneeded details and, quite often, to overlook valuable information that might be elicited through spontaneous testimony.

Good Testimony Emphasizes Observation and Avoids Conclusions

The best possible testimony from lay witnesses emphasizes their observations and minimizes their conclusions.

For example, testimony from a layman that you suffer from emphysema, grand mal epilepsy, or arachnoiditis is simply a restatement of what someone else has told him and adds little to your case, particularly if other evidence from better sources shows the witness to be in error.

Similarly, it does not help to have a lay witnesses testify that you are “disabled,” “totally disabled, or “permanently disabled.” Disability under the Social Security Act is not premised on total disability or permanent disability, and the use of those terms may cloud your presentation, particularly if the entire evidence shows that you are disabled but that the disability is not either total or permanent.

Here are some sample questions that your attorney might ask a lay witness:

Walking:

  • In the last few years, have you observed the claimant having any difficulty walking? Describe what you have observed.
  • Expressed in terms of city blocks, how far would be a long way for the claimant to walk without stopping to rest? How long will the claimant need to rest?

Arms and Hands:

  • Has the claimant had any difficulty using his or her arms or hands? Describe what you have observed.
  • Does the claimant drop things? What things? How often have you observed this?

Pain:

  • Does the claimant appear to be in pain?
  • About how much of the time is he or she in pain?
  • How do you know the claimant is in pain?

Fatigue:

  • Does the claimant seem to get worn out easily? What would be a good example (other than walking) of an activity that would wear the claimant out? How long does the claimant then need to rest?

Pace:

  • Is the speed or pace at which the claimant does things any different from the speed or pace at which normal people do things? What is the difference?
  • Expressed as a percentage, about what percentage of a normal person’s pace is the claimant’s pace?

Mental/Emotional:

  • Have you noticed any mental or emotional changes in the claimant? E.g., depression, crying spells, panic attacks, social withdrawal, problems with memory, attention span, or concentration. How often? How long do these problems last?

Corroborative Testimony

Sometimes the goal of using lay testimony is to simply corroborate your testimony.

Here is an example of how your attorney might do that:

Q: How often do you have the opportunity to observe the claimant?
A: Every day.
Q: You have been present throughout the claimant’s testimony, haven’t you?
A: Yes.
Q: If I were to ask you the same questions that you heard asked of the claimant, would your answers be the same or essentially the same as the answers given by the claimant?
A: Yes.
Q: From your observations of the claimant, has he testified truthfully here today?
A: Yes he has.

Before and After Testimony

Sometimes your attorney will try to get “before” and “after” testimony from lay witnesses. This type of testimony compares your condition from before your disability started to how you function now.

A poor example would be if your wife testified that you have emphysema, are disabled, and that the two of you need the money. This testimony does not emphasize her observations, and merely provides conclusions.

A better approach is if she testifies that she has known you for 28 years and has been married to you for 26 years, that you have always been a hard worker and a good provider, that you are now distraught because you can no longer provide for the family, and that because of your illness she has had to go to work, she has made a start.

It is even better if she then testifies as to your impairments, as observed by her, and indicates how they limit your actions, particularly those having to do with work functions, and verifies your medical regimen. In addition, she can describe in graphic detail that you keep her awake most of the night with your continuous coughing, that you appear to have difficulty lifting a gallon of milk from the refrigerator, that you recently tried to pick up a two-year-old grandchild and dropped him, that you quit smoking last year and use an intermittent positive pressure breathing machine regularly in addition to taking prescribed medication and still have difficulty breathing after walking to the mailbox, 50 feet from the front door.

Examples of Good and Poor Testimony

The following examples show the difference between strong and weak lay testimony. The best examples provide detailed testimony about a specific incident observed by the witness, showing an anecdote that represents many other such incidents.

Seizures

Weak:

[Your name] has epilepsy.

[This is a conclusion, quite likely based on what someone has told the witness who, being a layman, not a doctor, may be surprised before the end of the hearing to learn that the claimant suffers from an organic brain syndrome instead of epilepsy.]

Strong:

My son suffers from grand mal epilepsy according to his doctor, and [your name] actions are almost the same as my son’s. He has what appears to be seizures, falls down, bites his tongue, loses consciousness, and loses control of his bladder. When he recovers, after 25 minutes or so, he appears to be in a daze and has trouble speaking. He sleeps for a couple of hours and then appears to be all right. I have seen this happen maybe a dozen times in the last two years.

[These observations will go far to convince the administrative law judge that the claimant suffers from a serious seizure disorder, regardless of the label placed on it.]

Breathing Impairment

Weak:

[Your name] has emphysema.

Strong:

[Your name] sits in a chair by the window most of the day. The phone is maybe 20 feet away. When his wife is not there and he has to answer the phone when I call, he is gasping for breath after walking even that short distance and has to rest for a minute after saying, “Hello.”

[In this sample testimony the witness has furnished not a conclusion (“emphysema”) but observations from which the administrative law judge can conclude that the claimant has a severe breathing impairment. The exact label to be placed on the impairment (emphysema, bronchitis, asthma, allergy, tuberculosis) is not important at this point, and can be supplied by the administrative law judge after all the evidence is in.]

Pain

Weak:

My husband is disabled by his pain.

Strong:

From what I have seen since my husband came home from the hospital, he appears to be in almost constant pain. He is up and down all night, groans in his sleep, and never appears to be comfortable. His doctor told him to take up to four pain tablets a day, but he never takes less than six. Then he takes a dozen or so aspirin on top of that. He has lost his appetite and 15 pounds. Our social life is nonexistent. He doesn’t drive anymore, or even ride in a car when he doesn’t have to, since he says it hurts too much. I do all the grocery shopping and do the yard work because I’m convinced he hurts too bad to do it. He always did those things before he was hurt. We don’t go to church anymore because he says he can’t sit still that long.

Coworker Testimony

Weak:

[Your name] was disabled even while he was working at the plant with me.

Strong:

I worked with [your name] for six years. He always did his share of the work until he was hurt. In the last year he was there, I saw him faint twice and took him to the emergency room at the hospital on one occasion. The foreman gave him a lighter job, where he wouldn’t have to lift over five pounds and wouldn’t have to work around moving machinery. All of us pitched in and did part of his work for him. He was absent one or two days a week toward the last. I understand he is retired now on disability.

Weak:

[Your name] can’t do her housework.

Strong:

[Your name] has always been a meticulous housekeeper. However, during the past year, she has simply let the housework go. I do the laundry for her and the vacuuming. When I visit her, she is usually resting on the couch or in bed. I have seen her try to cook dinner and drop a pan full of hot food. She drops dishes a lot. Once, when I was there, she fainted while she was cooking dinner and fell across the stove.

Weak:

Operating a power sewing machine in a clothing factory is hard work. [Your name] can’t do it anymore.

Strong:

I sat next to [your name] at the sewing factory and we operated power sewing machines. We were required to sit all day, except for one 30 minute lunch break and two 15 minute coffee breaks. We were required to use both hands and one foot to perform the necessary sewing operations and had to lift and carry up to 20 pounds of finished garments. We had a quota to make. It required good eyesight and good coordination. If she can’t do all those things, she can’t do the work.

Weak:

As personnel manager for the XYZ Company, I can say that [your name] is too disabled to do her former work, even though she tried.

Strong:

As personnel manager for the XYZ Company, I am familiar with the work [your name] did. She worked as a hand sander, finishing pieces of furniture. This required her to stand for eight hours a day, with the usual breaks, to bend, stoop, work in awkward positions, and to lift up to 30 pounds. She was often absent due to her illness and once we had to shut down the assembly line due to her absence. Our records show that during the last six months she worked for us, she was absent for 31 whole days and went home early on 16 occasions. Her work was satisfactory when she was there, but she was absent so much we had to let her go. Reports from her doctor indicated that she was absent due to treatment for a nervous condition.

Company Disability

Weak:

As personnel manager, I think [your name] is entitled to social security disability benefits since he is already drawing disability retirement from our company.

Strong:

As personnel manager, I help make disability determinations for persons who file for disability benefits under our company plan. Under our policy, a person is considered disabled if he is unable to do his usual work or comparable work in the plant because of his impairments, for a period of at least six months. Under that definition, [your name] has been found by us to be disabled.

Vocational issues

By Your disability hearing

Vocational Issues in Social Security Disability

There are a limited number of vocational issues in a Social Security disability case. They are:

1. What are the physical and mental demands of the claimant’s past relevant work as the claimant performed it?

A vocational expert (VE) is probably not necessary to answer this question. A Social Security regulation provides that “statements by the claimant regarding past work are generally sufficient for determining the skill level, exertional demands and nonexertional demands of such work.”

However, if a vocational expert is present at the hearing, the VE will probably be asked to describe your past relevant work. The regulations provide that a “vocational expert or specialist may offer relevant evidence within his or her expertise or knowledge concerning the physical and mental demands of a claimant’s past relevant work, either as the claimant actually performed it or as generally performed in the national economy. Such evidence may be helpful in supplementing or evaluating the accuracy of the claimant’s description of his past work.”

2. What are the physical and mental demands of the claimant’s former job as generally required by employers throughout the national economy?

This issue comes up if you are unable to do any past job as the you actually performed it, but a past job involved functional demands and job duties significantly in excess of those generally required for that job by other employers.

You will be found not disabled if you retain the capacity to perform the job as ordinarily required by employers throughout the national economy.

3. Can the claimant meet the demands of the claimant’s previous work, either as the claimant actually performed it or as generally performed in the national economy?

The regulations provide that “a vocational expert or specialist may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either as the claimant actually performed it or as generally performed in the national economy.”

4. Does the claimant have skills that are transferable to a significant range of work?

The issue of transferability of work skills is a complicated one made relevant in some cases by the Medical-Vocational Guidelines.

This issue does not come up very often.

Even if it is determined that there are no transferable skills, younger claimants may be denied benefits based upon the capacity for unskilled work. In those cases involving claimants age 50 and over where transferability matters, there are different standards based on age for determining whether or not skills are transferable.

5. Is the claimant capable of performing other work? Do jobs exist in significant numbers within the claimant’s RFC considering age, education and work experience? That is, is vocational adjustment possible to other work?

This issue includes the questions: For a literate, English speaking claimant under age 50, how many jobs are available to a claimant with a particular residual functional capacity? For the rest, how much of the claimant’s occupational base has been eroded by his or her impairments?

These issues come up when the Medical-Vocational Guidelines do not direct a conclusion that you are or are not disabled.

For the Medical-Vocational Guidelines to be used, your RFC, education and work experience must coincide with the criteria of one of the rules in the Guidelines. Where there is no close fit between your characteristics and the Medical-Vocational Guidelines, the Guidelines must be used as a framework for determining the interaction of your remaining occupational base with the other factors affecting capability for occupational adjustment—age, education and work experience.

The Government’s Vocational Expert

If your case involves a vocational issue then a vocational expert (VE) may be scheduled to testify. This expert is most likely to be appointed by the Administrative Law Judge (ALJ), but sometimes your attorney may have an opportunity to have your own VE testify or provide a written opinion.

Vocational experts testify at the request of the Social Security Administration in many more Social Security disability hearings than do medical experts. However, the experience, knowledge, ability, understanding of the VE role, and the prejudices of individual VEs vary much more widely than do the skills and experience of medical experts. Your attorney will probably not be pleased to receive a notice that a government vocational expert will be testifying at your hearing.

The primary purpose of vocational expert testimony is to meet the Social Security Administration’s burden of proof in denying disability benefits. However, this may not be the motivation of an individual ALJ. Generally the presence of a VE at a disability hearing means that the ALJ has reviewed the hearing exhibits and concluded that you cannot do past work, at least as you actually performed it, and that the case is not one in which benefits can be granted or denied using the Medical-Vocational Guidelines alone.

The vocational expert is supposed to address the vocational issues created by the Social Security Act and the Medical-Vocational Guidelines. The Social Security Act provides that a claimant “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kinds of substantial gainful work which exists in the national economy . . . in significant numbers.”

The Medical-Vocational Guidelines were designed to address two things:

(1) whether jobs exist in significant numbers for certain combinations of residual functional capacity (RFC), age, education and work experience.

(2) to set the parameters for assessing the impact of age, education and work experience in those cases where the rules themselves do not direct a conclusion whether a claimant is or is not disabled.

If you are under age 50 (or under age 45 if illiterate or unable to communicate in English), the job of the vocational expert is to determine how many jobs you are capable of doing based on the your residual functional capacity. If you are capable of performing a “significant number” of jobs, then you are not disabled. Age, education and work experience really do not enter into this calculation.

It is the decision-maker’s job to determine what a “significant number” is.

The Medical-Vocational Guidelines say that a claimant with the same age, education and work experience will be found disabled if limited to sedentary work, but if he were capable of a full range of light work he will be found not disabled.

An ALJ needs to consult a vocational expert “where the extent of the erosion of the occupational base is not clear” and the claimant’s exertional capacity falls between two rules from the Medical-Vocational Guidelines that dictate opposite conclusions.

In recent years, when the Medical-Vocational Guidelines are not directly applicable, the role of the vocational expert in assessing the case of a claimant over age 50 is simply to offer an opinion about the number of jobs in the economy that the claimant is capable of performing. Then, it is up to the ALJ to determine whether this is a “significant number.” Although ALJs tend to take an “I know a significant number when I see one” approach, the regulations require “full consideration to all relevant facts in accordance with the definitions and discussions under vocational considerations,” and “full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor.”

Testimony from a Vocational Expert

ALJs usually do not ask any Vocational Experts questions about vocational adjustment or erosion of the occupational base. The questions ALJs usually ask are:

1. What are the skill and exertional levels of the claimant’s past job as the claimant actually performed it?

2. What are the skill and exertional levels of the claimant’s past job as generally required by employers throughout the country?

3. Assuming that the claimant is capable of [describe hypothetical RFC findings, etc.], is the claimant capable of returning to past relevant work?

4. [Where the issue of transferability of skills is critical:] If the claimant has the following residual functional capacity: [insert RFC], and the claimant is incapable of performing his skilled (or semi-skilled) past relevant work, does the claimant have any acquired skills that are transferable to some other skilled or semi-skilled work?

If yes,

  • list the transferable skills;
  • identify the jobs to which these skills transfer; and
  • state the number of these jobs in the local and national economy.

5. [Where the Medical-Vocational Guidelines do not direct a conclusion of whether the claimant is or is not disabled:] Assuming that the claimant is unable to perform the prior work of [insert description of PRW], that the claimant has no transferable work skills, that the claimant’s educational level is [insert educational level], and that the claimant’s residual functional capacity is [insert RFC], is the claimant capable of performing other work?

If yes,

  • identify the jobs; and
  • state the number of these jobs in the local and national economy.

Vocational experts “should give full and complete answers to the questions posed by the ALJ and should not volunteer information.” They are expected to testify “only on vocational issues and only on those vocational issues which are relevant to the requirements of the statute, regulations and rulings.”

A VE is not supposed to:

  • Provide his or her own evaluation of the medical evidence.
  • State whether you are a proper candidate for vocational rehabilitation.
  • State whether you can compete with unimpaired individuals for available employment.
  • State whether job vacancies exist or whether you would be hired for existing jobs.
  • State whether you can perform in a specific occupation with the same degree of efficiency or productivity as individuals with less than severe or no impairments.
  • State whether you are or are not disabled.

The Americans With Disabilities Act Has Different Requirements

A memorandum to staff and judges from the Associate Commissioner of the Social Security Administration emphasized that the ADA and the disability provisions of the Social Security Act have different purposes, and have no direct application to one another. For example, the ADA defines “disability” in relation to the ability to perform what it describes as “major life activities.” Therefore, the term is not synonymous with “disability” as defined in the Social Security Act.

The Dictionary of Occupational Titles (DOT)

The Dictionary of Occupational Titles (DOT) contains brief descriptions of 12,741 occupations. There is a close link between the DOT and Social Security regulations. The DOT provided the definitions of exertional and skill levels in the regulations; and the grids, the individual charts based on exertional levels in the Medical-Vocational Guidelines, are based on the numbers of unskilled DOT occupational titles at each level of exertion.

Vocational experts are expected to be familiar with the DOT. The Social Security Administration relies on the DOT and other publications, even though the DOT is out of date (it was last revised in 1991). The Department of Labor has stopped revising the DOT and is replacing it with the O*Net, which has virtually no useful information for disability determination using the current sequential evaluation process.

The Social Security Administration has told decision-makers that when making disability decisions, they are not to rely on the O*Net.

In addition, a Social Security regulation provides that if vocational expert testimony conflicts with the DOT, the ALJ must obtain a reasonable explanation and set forth in the decision how the conflict was resolved.

Physical Exertion Levels

The classification of physical exertion levels used by the Social Security Administration is the same as in the Dictionary of Occupational Titles. However, the work levels published by the Department of Labor in the DOT have changed since the Social Security regulation was first published. The work levels stated in the Social Security regulations, which coincides with earlier editions of the DOT, may be summarized as follows:

Sedentary jobs involve sitting; walking and standing are required occasionally. When walking or standing are involved to a significant degree, the job is classified as light even when the weight lifted is negligible. A job is also classified as light when it involves sitting most of the time with a degree of pushing and pulling of arm and/or leg controls.

The 1991 revised edition of the DOT uses different definitions of exertional levels, which recognizes that constant lifting increases the exertional level. These newer definitions may be useful in cases where your client’s past relevant work required constant lifting.

Occasionally: activity or condition exists up to 1/3 of the time.
Frequently: activity or condition exists from 1/3 to 2/3 of the time.
Constantly: activity or condition exists 2/3 or more of the time.

*The definition of Light Work used in the 1991 Revision includes the following notation:

Even though the weight lifted requirements may be a negligible amount, a job should be rated Light Work when it requires:

(1) walking or standing to a significant degree; or
(2) sitting most of the time but entails pushing and or pulling of arm or leg controls; and/or
(3) working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

DOT Specific Vocational Preparation and Skill Level

Social Security regulations define unskilled work as work that a person can usually learn to do in 30 days.

The DOT sets forth training time for jobs called “specific vocational preparation ” or SVP, which is the time it takes to develop the facility for average performance on the job. The different SVP levels correspond to the Social Security Administration’s definitions of unskilled, semi-skilled and skilled work in the following chart:

There are relatively few SVP 1 occupations found in the DOT. Here are the numbers of SVP 1 and SVP 2 DOT titles by exertional level (including the numbers of semi-skilled and skilled DOT occupational titles by exertional level):

Example of the Use of the DOT: Nurse Assistant

The DOT contains an “Alphabetical Index of Occupational Titles,” and includes the following entry.

355.674-014 NURSE ASSISTANT (medical ser.) alternate titles: nurse aide

Performs any combination of following duties in care of patients in hospital, nursing home, or other medical facility, under the direction of nursing and medical staff. Answers signal lights and bells, or intercom system to determine patients’ needs. Bathes, dresses, and undresses patients. Serves and collects food trays and feeds patients requiring help. Transports patients using wheelchair or wheeled cart, or assists patients to walk. Drapes patients for examinations and treatments, and remains with patients, performing such duties as holding instruments and adjusting lights. Turns and repositions bedfast patients, alone or with assistance, to prevent bedsores. Changes bed linens, runs errands, directs visitors, and answers telephone. Takes and records temperature, blood pressure, pulse and respiration rates, and food and liquid intake and output, as directed. Cleans, sterilizes, stores, prepares, and issues dressing packs, treatment trays, and other supplies. Dusts and cleans patients’ rooms. May be assigned to specific area of hospital, nursing home, or medical facility. May assist nursing staff in care of geriatric patients and be designated Geriatric Nurse Assistant (medical ser.). May assist in providing medical treatment and personal care to patients in private home settings and be designated Home Health Aide (medical ser.).

GOE: 10.03.02 STRENGTH: M GED: R3 M2 L2 SVP 4: DLU: 89

This tells you what a nurse assistant does. And if you decode the definition trailer (the material in italics), you can learn the physical demands of the job, the language or mathematics development (education and other training time) required, how long it takes to learn the job, and the last time this definition was updated.

The definitions for these codes show the following:

  • The GUIDE FOR OCCUPATIONAL EXPLORATION (GOE) code number, useful in comparing similar jobs, is 10.03.02.
  • Strength factor (STRENGTH) for the job is M or medium.
  • The general education development (GED) for this job is 3 for reasoning, 2 for mathematical development, and 2 for language development.
  • The specific vocational preparation (SVP) is 4.
  • The job description data were last updated in 1989.

The meanings of these codes are:

Medium work is work that requires the following:

Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for Light Work.

Reasoning 3 requires:

Apply commonsense understanding to carry out instructions furnished in written, oral or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

Mathematical Development 2 requires:

Add, subtract, multiply, and divide all units of measure. Perform the four operations with like common and decimal fractions. Compute ratio, rate, and percent. Draw and interpret bar graphs. Perform arithmetic operations involving all American monetary units.

Language Development 2 requires:

Reading: Passive vocabulary of 5,000-6,000 words. Read at a rate of 190-215 words per minute. Read adventure stories and comic books, looking up unfamiliar words in dictionary for meaning, spelling, and pronunciation. Read instructions for assembling model cars and airplanes. Writing: Write compound and complex sentences using cursive style, proper end punctuation, and employing adjectives and adverbs. Speaking: Speak clearly and distinctly with appropriate pauses and emphasis, correct pronunciation, variations in word order, using present, perfect, and future tenses.

The specific vocational preparation (SVP) of 4 means:

To perform this job a person must have over 3 months, up to and including 6 months, of training in vocational education, apprenticeship training, in-plant training, on-the-job training, or essential experience in other jobs.

From this information, you can determine whether this job qualifies as past relevant work.

In addition, this description may show why you cannot return to it (e.g., inability to lift 50 pounds, inability to stand and walk for extended periods, or inability to tolerate frequent job duty changes and emergencies).

Example of the Use of Materials that Supplement the DOT: Surveillance-System Monitor

The DOT provides the following:

379.367-010 Surveillance-System Monitor (government ser.)

Monitors premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifies authorities by telephone of need for corrective action. Observes television screens that transmit in sequence views of transportation facility sites. Pushes hold button to maintain surveillance of location where incident is developing, and telephones police or other designated agency to notify authorities of location of disruptive activity. Adjusts monitor controls when required to improve reception, and notifies repair services of equipment malfunctions.

GOE 04.02.03. STRENGTH: S GED: R3 M1 L3 SVP: 2 DLU 86

Decoding the definition trailer shows the following requirements:

Reasoning 3 requires:

Apply commonsense understanding to carry out instructions furnished in written, oral or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

Mathematical Development 1 requires:

The ability to add and subtract two-digit numbers, and to multiply and divide 10’s and 100’s by 2, 3, 4, and 5.

Language Development 3 requires:

The ability to read novels, magazines, and encyclopedias. The worker must be able to read safety rules and instruction manuals; have the skills to write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech; and possess the ability to speak before an audience with poise, voice control, confidence, and proper English.

The DOT provides some useful information about this job. However, we can also evaluate this job using Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles, Classifications of Jobs or a similar resource that gives the full range of Department of Labor coding for the job. In that publication we find the following:

This job requires frequent talking, hearing, and near visual acuity. A surveillance-system monitor must have the temperament to perform “repetitive or short cycle work.”

According to the Revised Handbook for Analyzing Jobs, performing “repetitive or short cycle work” involves “performing a few routine and uninvolved tasks over and over again according to set procedures, sequence, or pace with little opportunity for diversion or interruption.”

A surveillance-system monitor must also work under specific instructions and deal effectively with people. Intelligence, that is, the ability to understand instructions and underlying principles, reasoning, and the ability to make judgments, must be equal to that found in the middle third of the population. This intelligence requirement is a significant difference from most sedentary unskilled work. Likewise, verbal skills, the ability to understand meanings of words and the ideas associated with them and then use them effectively, must be equal to the middle third of the population, also a significant difference from most unskilled sedentary work.

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.

The hearing

By Your disability hearing

The Social Security Disability Hearing

A Social Security disability hearing is held in front of an administrative law judge (ALJ). It is much less formal than a court hearing, and is non-adversarial. That is, there is no lawyer representing the Social Security Administration who appears to present SSA’s side. Indeed, SSA claims that it doesn’t have a “side.” The agency views its role as providing benefits to those claimants who are disabled and denying benefits to those who are not. It is the ALJ’s job, as a neutral fact-finder working for a neutral agency, to inquire fully into the disability issues and find the claimant disabled if the claimant meets the requirements for disability set forth in the Social Security Act.

For the most part, ALJs fulfill the neutral fact-finder role, granting disability benefits to about 60 percent of all claimants who appeal to the hearing level. There are, of course, individual differences among ALJs. While all ALJs view themselves as neutral fact-finders, some are harder to convince than others. Some have low approval rates, while others are quite generous.

When preparing a case for any ALJ, your attorney will gather and submit medical records, medical opinions and other documentary evidence before the hearing (and after the hearing, if necessary), present witnesses’ testimony at the hearing and examine witnesses called by the ALJ (cross-examining them, if necessary), and present the your case in its best light to show that you are disabled under the law. It is part of your attorney’s job to avoid treating the ALJ as an adversary, even when your lawyer is arguing that the ALJ is wrong about the law or facts. In fact, opportunities to present an argument to an ALJ arise more often with the very good judges, the ones who will tell you when they have a problem with a particular aspect of your case. They tell your attorney this in order to give your attorney the opportunity to argue for your position. Even with judges who are more difficult to convince, it does not help for your attorney to treat a judge as an adversary.

You may appear in person before the ALJ or by video teleconferencing, though you are not required to appear by video if you do not want to. 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 courts. Strict deadlines for submitting evidence generally do not apply, though more deadlines are coming to this area of practice. Even so, if your attorney is having trouble getting particular evidence, he or she can ask the ALJ to issue a subpoena for the evidence or ask for additional time to obtain it and submit it after the hearing, if necessary.

Vocational experts (VEs) or medical experts (MEs) may testify, appearing in person, by video teleconferencing, or sometimes by telephone. VEs testify in nearly 60 percent of all hearings. MEs testify in somewhat fewer than 20 percent. Such experts are supposed to be neutral, too, unlike, for example, experts in worker’s compensation or personal injury cases, where everyone expects the experts to take sides. Of course, when a medical expert appears who is used to testifying for insurance companies in worker’s compensation cases, you are not likely to get much help on the case from the ME. Although an ME’s testimony alone can win a case for you (by demonstrating that your impairments meet or equal an impairment found in SSA’s Listing of Impairments), it is less likely that an ME’s testimony will be the sole reason you lose.

On the other hand, a vocational expert’s testimony can be the sole reason you lose a disability case. Although VEs also view themselves as neutral, neutrality is not the issue. VEs have been given a nearly impossible role by SSA, one that is at the very edge of their expertise. A vocational expert’s real expertise usually involves job placement for people with physical or mental limitations. VEs’ jobs often include encouraging employers to accommodate disabilities, which SSA says is not relevant to the disability determination process because SSA is concerned with how jobs are ordinarily performed in the economy, not with whether an employer might be willing to alter job duties to accommodate a limitation. SSA expects a VE to be familiar with the Dictionary of Occupational Titles, which most VEs have stopped using in their regular jobs because it is outdated. And SSA expects a VE to be able to tell an ALJ how many jobs exist in the economy for people with certain limitations, which is not something they do in their regular jobs and which requires a lot of guess work.

Most VEs view their role as giving the ALJ options — that is, they provide a basis for a denial decision and a basis for a favorable decision. VEs say they help ALJs find the line between who is disabled and who is not. However, it is a rare VE who will challenge an ALJ’s preconceived notion about a case.

If the VE draws the line correctly between those who are disabled and those who are not, your attorney’s job is to make sure you are on the disabled side of the line. This is not something done by cross-examining a VE. This is done by your attorney presenting convincing evidence about your residual functional capacity. If the ALJ does not include enough limitations in hypothetical questions to the VE, your attorney’s job is to ask additional questions that include all your limitations so that the line can be drawn between the disabled and not disabled. If the VE draws the line incorrectly, your attorney must deal with that VE testimony (through cross examination or obtaining a rebuttal VE opinion) in order to redraw the line.

Sometimes at the conclusion of a hearing, an ALJ will issue an oral bench decision setting forth findings of fact and conclusions of law establishing that you are disabled. Then, within a few days, you will receive a short summary of the decision, which is the official favorable decision from which benefits are paid.

Otherwise, after the hearing, a full written decision will be issued by the administrative law judge. Although ALJs have no time limits for issuing decisions, because of the backlog at hearing offices, ALJs are under pressure from SSA to issue decisions expeditiously. Most ALJs do so, though a few do not.

When an ALJ does not issue a bench decision at the hearing, the ALJ usually will not tell your attorney whether you won or lost. Sometimes, though, it is obvious — such as when an ALJ stops a hearing without taking testimony from a vocational expert after a medical expert testifies that your impairment meets or equals an impairment found in the Listing of Impairments.

Social Security Hearing Procedure

The Social Security regulations do not describe hearing procedure in much detail. They provide that “[a]t the hearing, the administrative law judge looks fully into the issues, questions [the claimant] and the other witnesses, and accepts as evidence any documents that are material to the issues.”

The ALJ “may receive evidence at the hearing even though the evidence would not be admissible in court under the rules of evidence used by the court.”

Witnesses will testify under oath and the ALJ will allow parties to question witnesses. The ALJ may decide when the evidence will be presented and when the issues will be discussed.

Each ALJ conducts a hearing somewhat differently from every other ALJ. An individual ALJ may use different procedures when conducting a hearing involving an unrepresented claimant than those used in a hearing when an experienced attorney is representing the claimant. For example, the length and content of opening statements by ALJs vary greatly, as does the degree to which an ALJ questions the claimant, and whether the ALJ questions the claimant before or after the claimant’s attorney asks questions. Some ALJs ask witnesses to remain in the waiting room while the claimant testifies; others do not.

There are, however, broad similarities in the way disability hearings are conducted around the country because, to one degree or another, individual ALJs follow procedures set forth in the Social Security Administration manual called HALLEX.

ALJ’s Opening Statement

In a typical hearing, the administrative law judge will open the record, state who is present and note that your attorney is representing you. The ALJ may ask your attorney or you to verify that fact on the record. Most ALJs will make some effort at the beginning of the hearing to put you at ease.

The following may be part of an opening statement by the ALJ:

1. A statement of the de novo nature of the hearing and that the ALJ is not part of the office that previously denied the claim.

2. An explanation that a recording of the proceeding is being made and that the official record of the case will consist of oral testimony and documents admitted into evidence of record.

3. A description of the manner in which the hearing will be conducted including:

a. one person will testify at a time;
b. witnesses will be examined under oath and may be cross-examined;
c. the strict rules of evidence used in court will not be applied;
d. a reasonable time will be allowed to present oral argument or to file briefs about the facts and law material to the case.

4. A procedural history of the claim.

5. A statement of the issues.

6. A brief description of the documents that are proposed as exhibits, an inquiry whether there are any objections to those exhibits, and admission of exhibits after ruling on objections.

Some ALJs ask if your attorney will waive reading of the procedural history and statement of the issues. Unless there is some unusual issue in the case, attorneys always agree to waive it.

Video Hearings

Other than some SSA bureaucrats who claim that they are “efficient,” no one likes video hearings. Not the ALJs, not the experts, not the attorneys, least of all the claimants. Claimants generally like the opportunity to tell their stories to ALJs in person, but claimants generally do not find the same satisfaction with video hearings.

To overcome this resistance, SSA tries to encourage claimants to accept video hearings by sending a brochure that explains the advantages of having a video hearing. It is a short brochure, and it tells you, “Except for the equipment, a video hearing is no different than a hearing at which you appear in person.”

The trouble with this statement is that the video equipment fundamentally changes the nature of the interaction between the claimant and the ALJ. Instead of being in person, immediate and three dimensional, the hearing is remote and two dimensional. The single advantage of a video hearing is that the claimant may get the hearing sooner.

One of the Social Security regulations provides that if you object to appearing by video then the ALJ will find your wish not to appear by video teleconferencing to be a good reason for changing the time or place of hearing and will reschedule the hearing for a time and place at which you may make your appearance in person. Thus, you have veto power over your own appearance by video.

However, the same is not true for appearance by an expert. While your “wish” not to appear by video constitutes good cause for appearing in person, the regulation provides no such good cause when a claimant doesn’t want an expert to appear by video. Furthermore, the regulation contains no example of what would constitute good cause for having an expert witness appear in person rather than by video. Thus, it looks like an ALJ will grant a request that an expert appear in person only in rare circumstances.

In a typical video hearing where the ALJ is in one location and the claimant is in another, sometimes an ALJ will use an expert who is in the same location as the ALJ. Other times the expert will be in the same location as the claimant. There are hearings in which only the expert appears by video. There have also been hearings in which only the claimant’s attorney appears by video. Who is allowed to appear by video is left to the discretion of the ALJ.

If a good ALJ is assigned to your case for a video hearing, requesting that you appear in person before the ALJ runs the risk that your case will be reassigned to a different ALJ.

Whether or not requesting an in-person hearing might cause the case to be reassigned to a different ALJ, it will certainly cause a significant delay in scheduling the hearing.

Video hearings also present logistical problems for your lawyer in getting a copy of the entire paper hearing exhibit file early enough for your lawyer to obtain and submit new evidence and develop the issues in time for the scheduled hearing.

Additional problems arise on the day of the hearing because the hearing exhibit file is with the ALJ. Your lawyer will have no opportunity to review hearing exhibits just before the hearing. Since last minute review of a paper hearing exhibit file is impossible with a video hearing your attorney may ask that an updated exhibit list and any new exhibits submitted by SSA since the time he copied the file be faxed a day or so before the hearing.

Know that the ALJ may very well be able to hear everything being said in the hearing room where you are. Do not say anything in the hearing room before the hearing starts or after the hearing ends.

Persons Present in the Hearing Room

A Social Security disability hearing is private. The people present will be the ALJ, the judge’s assistant (usually a part-time outside contractor) who runs the tape recorder, the claimant, claimant’s attorney and any witnesses. Observers may be present only with the permission of the claimant and the ALJ.

Many ALJs allow witnesses to remain in the hearing room during the claimant’s testimony. Some ALJs have all witnesses come into the hearing room and then ask them to leave immediately after completing opening statements and procedural matters. Other ALJs ask witnesses to remain in the waiting area until it is time for their testimony. ALJs who follow the practice of excluding witnesses, sometimes referred to as sequestering witnesses, claim that witnesses who do not hear other testimony may be more credible.

Sometimes a claimant requests that a witness not be present when the claimant is testifying. ALJs have no difficulty accommodating such a request.

In mental impairment cases, the claimant should not be in the hearing room when the claimant’s family and friends are testifying. Claimants with mental impairments can become upset with the sort of testimony their lawyer must elicit in such a case. Witnesses also seem to give better testimony when the claimant is not present because they tend to be more relaxed and candid than when they are worrying about how the claimant is going to take each remark.