Hearing in front of an Administrative Law Judge | The Law Office of Nancy L. Cavey

What Are the Six Things You Must Do That Will Help You Win Your Social Security Disability Claim at the Hearing Level?

You were probably very disappointed when the Social Security Administration denied your claim for Social Security Disability benefits, but you didn’t give up. You filed a claim for reconsideration hoping that you would finally be approved, but you just got another notice of denial.

You may be tempted to give up, and that would be a huge mistake, because a significant number of cases are won at the hearing stage.

The Six Things You Must Do That Will Help You Win Your Social Security Disability Claim at the Hearing Level

One – Timely File a Request for a Hearing

By law, you only have sixty days in which to file a request for a hearing after you receive the denial of your request for reconsideration. Don’t blow the deadline, because if you do, you get to start all over again.

Two – Continue to Get Regular Medical Treatment, and Be Compliant with That Treatment

The SSA expects that you will get regular medical treatment, and be compliant with your doctor’s recommendations. If you’re having financial trouble, or can’t afford to see a doctor, the SSA will expect that you have attempted to get free or low-cost medical care. While you aren’t required to undergo surgery if it’s been recommended, you are expected to comply with recommendations for physical therapy, use medication as prescribed, and follow your doctor’s recommendations.

Three – Give Your Doctor an Accurate and Complete History of Your Symptoms and Limitations, and How They Impact Your Activities of Daily Living

Your medical records should tell the story of your symptoms, and how those symptoms impact your ability to function. It might be that you have back pain that prevents you from sitting and, as a result, you have to alternate sitting and standing. You might have difficulty standing at a sink doing dishes because of your back or leg pain, and you have to use a stool while doing the dishes. You might be unable to vacuum because of back pain and as a result, you have a Roomba to do the cleaning.

Four – Keep Your Lawyer Updated about Your Medical Appointments

It’s crucial that you keep your lawyer updated about your medical appointment so that they can obtain your medical records and submit them to the SSA In time for the court to review those records. All medical records must be filed at least five days prior to the hearing, unless there’s been a request to keep your file open to get those medical records. These days, it can take four to six weeks to get medical records, so the quicker you let your lawyer know that you’ve seen a provider, the quicker they can get your medical records.

Five – If Social Security Asks You to Fill out Disability Forms, Contact Your Lawyer Immediately

The SSA may send you forms or other documents to complete without copying your lawyer on that document. What you put on that mystery form can make or break your case, so you want to make sure that you have accurately completed it, and that your lawyer has reviewed and approved it before they file the document with the SSA.

Six – Keep in Contact with Your Attorney

While you don’t need to call your attorney every time you see a doctor, you should let your attorney know if any of the following happens:

you start seeing a new doctor,
you’ve been seen in the emergency room,
you’ve been hospitalized,
there’s been a change in your medical condition so that you’ve either gotten worse or better,
you move,
you change phone numbers,
you return to work,
you stop working,
you are contacted by someone from the SSA,
you get a notice that you’ve been scheduled for a consultant examination,
you get a notice from the SSA stating that you are or are not disabled,
you get forms from the SSA to fill out,
you get any correspondence from the SSA that you don’t understand.

It takes teamwork to win your Social Security claim, and keeping these six things in mind will help you and your attorney be successful in getting the Social Security Disability benefits you deserve. Contact Cavey Law today.

How Should I Answer a Social Security’s Judge’s Question about “What Keeps You from Working?”

Truthfully! That can be easier said than done. Many Social Security Disability applicants will answer that question by telling the judge, known as an ALJ, about their diagnosis. The judge will have reviewed the medical records, and will understand the diagnosis, and that’s not what they’re asking. What the ALJ really wants to know is what symptoms you have, and the severity of those symptoms that would keep you from working.

The Social Security Administration uses a five-step sequential evaluation process to determine your entitlement to Social Security Disability benefits. Most cases are won and lost at steps four and five.

At step four, you have to prove that you can’t go back to the lightest job that you had in the fifteen years before you became disabled. Once you’ve proven that you meet step four, you’ll have to prove that you meet the requirements of step five. At step five, you have to prove that you’re able to do other work in the mythical, not real-world national economy in view of your age, education, skills, and your restrictions and limitations.

Your Symptoms and Functionality

Ultimately, the ALJ has to determine what you’re capable of doing, notwithstanding all the medical problems that you have. That’s why it’s important that you’re telling your doctors what your symptoms are at each and every visit, and how those symptoms impact your ability to do basic things around the home like sitting, standing, walking, stooping, bending, lifting, or having to alternate sitting and standing. For example, you might have difficulty standing at the kitchen sink doing dishes, or just sitting in a chair at the dining room table. Telling your story in terms of symptoms and functionality should be easy for you because you live it every day.

The more detail you can provide to a judge about the problems you’re having with activities of daily living, the easier it is for the judge to understand your symptoms and your functionality. Do remember though that you should not be writing a novel.

Don’t give the judge the diagnosis. Just tell the judge your story in a way that is consistent with what your doctor has noted in your medical records. Honesty and consistency are the key to getting your Social Security Disability benefits.

How Should I Answer a Social Security’s Judge’s Question about “How Bad Is Your Pain?”

When the judge asks about your pain, what the ALJ really wants to know is what symptoms you have, including pain, and the severity of those symptoms and pain.
The Social Security Administration uses a five-step sequential evaluation process to determine your entitlement to Social Security Disability benefits. Most cases are won and lost at steps four and five.

Your Symptoms, Pain, and Functionality

Ultimately, the ALJ has to determine what you’re capable of doing notwithstanding all the medical problems that you have, including your pain.

That’s why it’s important that at each visit you tell your doctor about your symptoms and your pain. You certainly don’t want to exaggerate your pain when you talk with your doctor or to the judge.

If you tell the judge that your pain level is ten out of ten every day, day in and day out, the judge is going to wonder why you aren’t in the emergency room or hospitalized. That type of testimony would be considered exaggeration. While everybody experiences pain differently, you don’t need to exaggerate the level of your pain to get the judge to believe you. The exact opposite will happen.

You want to be truthful with your doctor about your symptoms, your pain, and how it impacts your ability to do basic things around the house. Your pain may impact your ability to do basic things around the home like sitting, standing, walking, stooping, bending, and lifting. It may cause you to change positions, or alternate sitting and standing.

For example, you might have difficulty standing at the kitchen sink doing dishes, or just sitting in a chair at the dining room table. Telling your story in terms of symptoms and functionality should be easy for you because you live it every day.

The same holds true when the judge asks you about your pain.

While you shouldn’t exaggerate your pain, you shouldn’t minimize it either. We want to establish how pain prevents you from doing your past work, or other work during an eight-hour day. It might be that you have difficulty sitting, problems using your upper extremities, have to take a nap, have good days or bad days, have difficulty concentrating because of pain, or even have side effects of medication you’re taking because of pain.

The more detail you can provide to a judge about the problems you’re having with activities of daily living, the easier it is for the judge to understand your symptoms and your functionality.

Don’t give the judge the diagnosis! Just tell the judge your story about your pain in a way that is consistent with what your doctor has noted in your medical records. Honesty and consistency are the key to getting your Social Security Disability benefits.

Am I Going to Be Giving Medical Testimony at My Social Security Disability Hearing?

If you have been scheduled for a hearing on your Social Security Disability claim, you might be wondering whether you are going to be giving medical testimony about your diagnosis. The answer is no.

The Social Security judge will have reviewed your medical records in their entirety, and understands the diagnosis, and does not want to hear from you about any medical testimony. In fact, you are not competent or qualified to give any medical testimony.

You should not quote your doctor unless asked by your attorney or the judge to explain “What did your doctor say?”

What Does the Judge Want to Hear? The Story of Your Symptoms, and How Those Symptoms Impact Your Ability to Function

For example, if you have a back problem, the judge will want to know about your pack pain, whether it radiates down your buttocks into your legs, whether you have numbness and tingling or shooting sensations, and what you can functionally do because of those symptoms. You might only be able to sit for thirty to forty-five minutes before you must get up and move around because of the leg pain, or you might only be able to stand in front of a kitchen sink for ten minutes before you must sit down. It is the combination of your symptoms and functionality that is key.

However, if there are significant inconsistencies in your medical records, you might be asked by your attorney or the judge to explain those inconsistencies. For example, the medical records might indicate that you have refused treatment, yet you complain that you are in significant pain. In fact, you might have refused to undergo surgery because you know someone who had a poor surgical result, but you have tried alternative forms of treatment to relieve your pain.

Remember; you are not a doctor, and you shouldn’t play one on TV or in front of a judge at a Social Security hearing.

The Rules about Testifying in Your Social Security Claim, and Why Giving Examples and Telling Stories about Your Symptoms and Functionality Is Crucial

Unfortunately, medical records rarely tell the story of a person’s symptoms and functionality.That is one of the many reasons why a Social Security Disability claim is denied. The Social Security judge does not want medical testimony from you because they have already read the medical records.The judge understands your medical condition, but the problem is that your medical records do not tell the story of your symptoms and functionality.

The Story of Your Symptoms and Your Functionality

The judge wants to hear your story about your symptoms and functionality. The best way to do that is to give the description of your symptoms, and examples of how your symptoms impact your ability to function.

For example, you might have migraine headaches. You should tell your story about your migraine symptoms, how they progress, what you do to try to control your symptoms, how long you might spend in a cold dark room, how you feel after the migraine is over.

Tell the judge how those migraines impact your ability to function, and give examples of the things that you might not be able to do as the migraine develops, or during the migraine. The more specific your story about the symptoms and your functionality, the more likely it is that the judge will understand why you cannot do your past work, or other work in the national economy.

The Role of the Vocational Evaluator

There will be another witness at your Social Security hearing. That person is an expert in the world of work, and is known as a vocational evaluator, The judge will give the vocational evaluator hypotheticals at steps four and five to determine whether you are entitled to Social Security Disability benefits.

At step four, the judge will give the VE a hypothetical to determine if you can go back to the lightest and simplest job you held in the five years before you became disabled. For example, at step four, the judge may ask vocational evaluator to assume that you can only sit six out of eight hours, stand two out of eight hours, and only lift ten pounds. The judge will form the basis of this hypothetical, in part, based on your medical records, any residual functional capacity forms your doctors were made to complete, and your testimony about your symptoms and functionality.

At step five, the judge will give the VE a hypothetical to determine if you can do other work in the national economy, in view of your age, education, skills, restrictions, and limitations.

If you cannot do your past work or other work, the judge will award you benefits. The story of your symptoms and functionality told in detail with examples is one of the keys to getting your Social Security Disability.

The Rules for Testifying at Your Social Security Disability Hearing

At all times during your Social Security hearing, and particularly when you are testifying about your symptoms and functionality, you should:

Tell the truth,
Tell the story about symptoms and functionality with detail and examples,
Never exaggerate your symptoms, and
Never exaggerate the impact your symptoms have on your functionality.

Do not give the judge a reason to deny your claim.

Is My Social Security Disability Hearing Going to Be Recorded?

Your Social Security hearing will be recorded in audio format. Even if you have a zoom video hearing, no video recording will be kept. The SSA will only keep an audio record of the hearing.
Before the hearing gets started, the judge will confirm that you have consented to a phone hearing, that you are not recording the hearing, and that the only official record of the Social Security hearing will be the audio recording. The judge’s judicial assistant will be responsible for operating the recording equipment and if, for some reason, there is a problem with the recording, or the call gets disconnected, the judicial assistant will call you back. The hearing will progress from the point at which the recording stopped.

Your Hearing is Private

Do not forget that your hearing is private, and no one is allowed to attend the hearing unless approved by the judge. The only people present will be the judge, the judges’ staff, any witnesses called by the judge, the vocational expert, you, and your attorney. Their testimony will be recorded, and will be part of the official record.

The recording is important because, if your claim is denied, you have the right to make an appeal to the appeals council. The appeals council will want to have the audio available for their review as part of the appellate process.

There are times when the appeals council will return a case to a judge for another repeat hearing because the audio recording is flawed.

Therefore, it is important that you answer questions clearly and loudly. Obviously, shaking your head, pointing, or other gestures will not be recorded and, as a result, you need to give answers aloud.

It is also helpful if you do not say things like “right,” “uh huh,” or “hmm,” as no one knows what those terms mean. As your mother might have said, use your words and use your inside voice.

What Does a Social Security Administration Law Judge Do at My Social Security Disability Hearing?

Your case may very well end up in front of a Social Security administrative law judge who will decide whether you meet the requirements of the five-step sequential evaluation test used in every Social Security claim.

The judge who will preside over your Social Security Disability hearing is known as an administrative law judge (ALJ, who serves as the trier of fact and determiner of your credibility and your Social Security claim. Their job is to issue an independent decision without regard to the fact that your claim was denied at the initial application and request for reconsideration stages. In many ways, the administrative law judge acts as both the lawyer for the Social Security Administration and a judge, particularly at step five of the analysis.

What Does the ALJ Do?

The judge will have reviewed your file material and be familiar with the case history, prior denials, and your medical records.

There is no lawyer representing Social Security who will appear at the hearing, even though the Social Security Administration has the burden to prove, at step five, that there are jobs that you can do despite your age, education, transferable skills, and restrictions and limitations. Many times, the way that the judge asks questions of you and poses hypotheticals to the vocational evaluator who will testify at step five makes it seem as if they are, in fact, representing the SSA.

You should treat the judge with respect, and be honest with the judge in response to those questions. You might be tempted to complain to the judge about the delay, or unfairness of the denial and the delay. The judge is well familiar with these problems and your frustration and, as a result, your time is better spent trying to prove that you meet the five-step sequential evaluation.
The judge will ask questions about your age, education, work history, your symptoms and functionality, and about what you do during a normal day.

Your lawyer should prepare you by reviewing with you the questions that you will be asked, practice your testimony with you so that it is accurate and truthful, and help you address weaknesses and problems in your Social Security Disability claim that the judge may want you to address.

If you do not understand any question that the judge is asking, ask them to repeat or explain the question so that you can answer it honestly and completely.

Getting a Social Security Disability Attorney ASAP

You can check out the approval rate of the judge, and comments about the judge’s demeanor, personality, and tendency to award or deny claims. Better yet, it is in your best interest to retain an experienced Social Security Disability attorney who could help you prepare for the hearing, deal with the judge, and prepare a memo of law to explain to the judge why you are entitled to your Social Security Disability benefits.

It takes teamwork to get your Social Security Disability benefits, and you should be taking this hearing and the preparation for the hearing very seriously.

Is the Social Security Judge Going to Be Asking Me Questions at the Social Security Disability Hearing?

Congratulations! Your big day has finally come, and you now can present your case to an administrative law judge.

Many judges will begin a disability hearing by summarizing the history of the case and stating the issues, including an explanation of the five-step sequential evaluation. However, often, that is waived when a person is represented, because their attorney will have explained the history of the case, the issues, and what needs to be proven to win a Social Security Disability case.

Many cases are won and lost at steps four and five. At step four, you have the burden to prove that you cannot return to the lightest physically demanding and simplest job you held in the five years before you became disabled.

Once you have met that burden, the Social Security Administration has the burden to prove at step five that there are jobs that you can do in the national economy despite your age, education, transferable skills, and restrictions and limitations.

The Judge Is Going to Do What the Judge Wants to Do

There is no rhyme or reason as to whether a judge is going to ask you questions at your Social Security Disability hearing. Some judges will ask questions about your age, education, work history, your symptoms and functionality, and what you do during a normal day. You should treat the judge with respect, and be honest with the judge in response to those questions.

Other times, the judge may give your attorney an opportunity to ask questions in response to the questions that the judge asked.

There are other judges who expect that the attorney will handle MOs, if not all of the questioning. In that instance, you may be tempted not to take your attorney’s questions as seriously as you would the judge and, as a result, not answer questions completely because your attorney knows. Do not give into that temptation.

At Cavey Law, we spent a great deal of time preparing our clients by having them watch a video about a Social Security hearing, and a second video that reviews with them all the questions that will be asked of them, explaining how to truthfully tell their story in a way that their judge will understand.

Our clients fill out a direct examination questionnaire that we both used during the hearing. When we practice, I play the judge, and my client plays themselves. We practice as if this is a live hearing in front of a judge, as opposed to a simple conversation they might have with me in my office.

While the judge will have reviewed your claim before the hearing, the judge has not heard the story of your symptoms, and how those symptoms impact your ability to function. We want to give a detailed explanation of those symptoms, with examples of how those symptoms impact your ability to function in your daily life.

It is this story told with examples that will help you in your Social Security Disability claim.Regardless of whether the judge asks some or none of the questions, you will be well prepared if you are represented by Cavey Law, as we take trial preparation very seriously.

Should You Take Your Medications the Day of Your Social Security Hearing?

I am often asked by my clients whether they should take their medication the morning of their Social Security hearing.

It depends.

If your medication causes side effects that would interfere with your testimony, you need to figure out the right time to take your medications so that you can listen to the judge’s questions, answer those questions accurately, and fully participate in the Social Security hearing. On the other hand, if your symptoms would increase to the point where you would be in so much pain that you would have difficulty concentrating or participating in your hearing, you probably should take your medication prior to the hearing so that you are at your best during the hearing.

Sometimes, medication causes side effects, such as the need to urinate. When you must go, you must go. If you must go to the bathroom during the hearing, please let the judge know and the judge will go off the record and allow you to take care of your personal needs. You do want to explain why you have the frequent urination so that the judge understands the impact of the side effects of medication.

Do not forget you will be asked to submit a list of your prescriptions prior to your hearing, together with information about any side effects. The judge may ask you questions about the use of your medication, side effects, the attempts by your doctors to change your medication to address side effects, and how you have responded to any change in medications. Medication side effects alone will not win your Social Security Disability claim, but can be one of the many factors that a judge should consider.

If, during the hearing, you are having problems because of pain or side effects of medication, you should let the judge know, and let the judge know how you may have modified the timing of your prescriptions the day before and the day of your hearing.