O’Brien & Feiler always recommends having competent representation at Disability Hearings. If you are in Georgia, we would like to help. If not, it is always advisable to seek local counsel that specializes in representing disability claimants.
After waiting for months or even years, the date of your ALJ disability hearing is here. This fairly short judicial proceeding is the culmination of years of struggle and effort, but is also the level of appeal with the best likelihood of receiving relief. This note attempts to answer several questions. Notably, what should the Claimant have done before this day, what should one expect at the hearing and what should a Claimant hope to leave with? These questions are normal, and if answered prior to the date of hearing may help a Claimant be more convincing to the Administrative Law Judge (ALJ) that hears the case. This proceeding has life-changing consequences and it should be treated with the gravity that it is due. The purpose of this note will hopefully give readers a peek behind the ALJ hearing curtain and hopefully de-mystify the process to help individuals prepare for the event of their hearing. It should be noted that there are many opportunities for cases to be won and lost both at and before hearings, and this note is also a general look that does not account for the preferences of individual judges.
What should have been done prior to ALJ Disability Hearings?
The rules about submitting medical records have changed over the past couple of years. All available evidence should have been gathered and submitted, or identified and communicated to the Judge through the ERE at least five days prior to the hearing. When the evidence submission rules changed, the SSA also agreed to provide 75 days notice of a future hearing date. While this does not always occur, it is important to note that a Claimant should ensure that all of their medical records are either collected or identified and communicated five or more days prior to the hearing. Failure to account for records may result in their exclusion from the record, which of course can have a terrible impact on a Claimant’s case. By timely providing records and supplemental information such as a pre-hearing brief, a Claimant can ensure that as the judge reviews the hearing materials prior to the court date, the judge is able to see the most complete picture possible, as well as to see a theory of the Claimant’s case.
Do ALJ Disability Hearings happen in a courtroom?
Yes, but not in a conventional sense. Hearings are held at hearing offices and by video conference. They do not take place in traditional courtrooms and they are private affairs, meaning that there will be no uninvolved observers while your case is heard. Some of the hearing locations feature hearing rooms that look a bit like courtrooms, while others a little more than a table with a TV at one end. Most hearing rooms are fairly small conference rooms that are designed to contain 4-5 comfortably at a given time. There is usually a central table upon which rests several microphones, which will be used to record the hearing. It is important to note that even at video hearings, the only recordings that are made are audio. No video is made, so one should avoid pointing at body parts and using “uh-huh” as a response. At one end of the table (and often stationed above the other room occupants) sits the judge (or the video screen), and at the other end sits the Claimant. To the Claimants side will sit his or her attorney, and frequently a vocational expert will be placed at the Claimant’s other side. Most hearings last between 45 minutes and one hour, but a variety of factors can influence this.
Who is present at ALJ Disability Hearings?
There are most commonly five primary players, which may be supplemented if the judge believes additional testimony is needed. Those players are the judge, the claimant, their attorney, the court reporter, and a vocational expert (VE). Additional individuals that may be added include a medical expert (ME) and any witnesses that the claimant may wish to call, and that the ALJ will allow. As one might imagine, the judge will determine who and when people will be present at the hearing. He or she will begin the case by stating that the case is going “on the record”, and making introductions. The Rules of Civil Procedure are often observed, but not expressly required by law. It is always proper to refer to a judge as, “Your Honor” or the slightly less formal “Sir / Ma’am”.
What happens once the ALJ Disability Hearing starts?
After going on the record and making basic introductions, the judge will then swear in any individuals who will testify in the case. Those sworn are typically the Claimant, the VE, the ME, and any witnesses that the Claimant will call. At some point, he will ask if the record is complete as it currently exists. For this reason, it is advisable to view the ERE immediately before a case is heard so that the Claimant can ensure that all evidence is present or accounted for.
Next, the judge may also ask the Claimant to stipulate to the credentials of the VE or ME. Stipulating means that one acknowledges their credentials of the experts asked to testify, and agrees that their experience gives them the ability to provide information about the Vocational and Medical issues present in the case. Stipulating is not mandatory, but any grievances should be well founded and clearly communicated. At this point, the judge may allow a Claimant or their counsel to make an opening statement or simply may dive into the question and answer process. It is important to answer questions not only clearly and with a yes or no, but also to expound on the answers. It is never appropriate to embellish the truth, but certainly presenting the truth in a light favorable to the Claimant’s case is the desired end. The case is being transcribed, so clear and audible answers are vital. OBF always recommends that Claimants share the “warts and all” truth, meaning that being modest or trying to appear strong is not always an advisable bearing.
Opening statements set the table for the issues being addressed in one’s case, but it should be objective, succinct, and should clearly state the theory of the case. If allowed, once a statement is made, the judge may begin asking questions of the Claimant, or may allow Claimant’s counsel to question the Claimant. The subjects most frequently asked relate not only to the medical condition, but to residential conditions, state of self-care, physician relationships, income, activities of daily care and living, support received from others in the form of money and physical assistance, and details about past jobs held. If the judge misses asking a question about what the Claimant believes is a crucial component of one of these subjects, it is important that they note this, and offer this crucial information as appropriate.
If the judge asks questions first, they will often start with a very general question like “Why in your own words are you unable to work?” After enumerating the Claimant’s issues, further insight should be sought by the judge or by the Claimant. Once Claimant testimony is complete, the judge will typically call the Vocational Expert to testify. Vocational testimony is frequently an un-nerving process to Claimants, but it is important to note that this is a hypothetical endeavor. The judge usually will seek information about the Claimant’s past work, transferability of skills if applicable, and then the ALJ will present a few scenarios to the VE regarding a worker of a certain age, education, and experience that exhibits certain traits or limitations.
Once this presentation is made, the judge will ask if such a worker can perform the Claimant’s past relevant work or if there is work that the hypothetical worker can perform. If so, the judge will then ask how many of those jobs exist in the national and local economy. Once the VE has opined on these hypothetical claimants, the Claimant will have an opportunity to cross-examine the VE on those particular scenarios, or develop a scenario of their own. There is a great deal of strategy that may be adopted here, but it is generally advisable to ensure that all documented limitations are included in a scenario, and further advisable to ensure that scenarios are adjusted to limit a Claimant’s ability to perform Past Relevant Work or any work if possible.
Once testimony of these parties concludes, the hearing will most often be closed and the judge will inform attendants that a decision will be forthcoming (typically in 8-12 weeks). It is possible, though increasingly unusual that the Judge will make a favorable decision on the record. This is often good news, but can also come with some procedural pitfalls such as an adjusted onset date, that require some analysis before accepting. If the judge does not provide a decision, this is not a bad thing, the judge simply may wish to analyze the case in light of the testimony provided and late arriving evidence.
What information should a Claimant have available?
When in the hearing room, Claimants should always be prepared to speak in specifics about their case, condition, means of support, physician treatment, previous work, and everything related to their sickness. These are the obvious components of a case, but in addition to telling the story of a case, there are a number of procedural elements that are helpful to have available quickly. I have listed them, with brief explanations below, and OBF’s Glossary may be helpful for explaining commonly used disability terms.
- Benefits Sought – Knowing whether one is applying for SSI (Title XVI), SSDI (Title II) or both is extremely important, as their varying requirements alter what must be proved at hearing.
- Date Last Insured – Working at a job that pays into Social Security provides a Claimant with “insurance” after laboring for a specific amount of time (often 5 out of the past 10 years). This date is significant because if a Claimant’s Onset Date occurs before this date, they are insured, if not, SSDI benefits are not available.
- Prior Period of Disability – If the Claimant received disability previously, it is important to be able to produce dates, the reasons for the disability, and the benefit type received. A prior period can often strengthen a current case.
- Alleged Onset Date – This is the date that the Claimant got so sick that they became disabled. This should be provable to a reasonable certainty via medical records.
- Revised Onset Date – This is a revision to the date from which the Claimant claims disability, and there are a variety of reasons that this may change ranging from the judge offering benefits from a different date, to their being a lack of medical evidence supporting the original date.
- Date Last Worked
- Date Case Filed
- Impairment Listings – If a Claimant wishes to declare that they met a listing, knowing which listing(s) they met is helpful. This is often supplied in a pre-hearing brief.
- Grid Listings – If a Claimant claims that they are able to “grid out” under the Vocational Grids, then knowing and supplying which grid rule supports their claim is important.
- Past Relevant Work + DOT Information – Knowing the DOT ratings of the past relevant work, and the work as performed by the Claimant is helpful when performing a grid analysis, and when evaluating vocational testimony.
In summary, Administrative Law Judge hearings are distillations of months or even years of application and treatment. Always be truthful, organized, and have a sense of the critical elements of a case. This is a process that can be unnerving and scary and life-altering, but hopefully some of the uncertainty is now gone.