How To Prepare For Your Social Security Disability Hearing

Transcript

Brian: Hi. I’m attorney Brian Gillette of the Gillette Law Group. I became a lawyer because I enjoy helping people. Over the years the Gillette Law Group has helped many people get the Social Security Disability benefits they need and deserve.

This video was designed to help you understand what happens during a Social Security Disability hearing. While this presentation doesn’t cover everything that happen at your hearing we hope it will answer many of your questions and reduce any anxiety you may have as you await your hearing. As you watch you may want to keep a pen and paper handy. Write down the topics you wish to discuss with us later. After finishing this video keep watching for a few extra tips we offer our clients at the Gillette Law Group.

Judge: Good morning. Are you Mr. Ken Brandt?

Ken: Yes.

Judge: Good morning Mr. Brandt. My name is Judge Crenshaw and I am the ALJ assigned to hear your case. We are here today because you requested a hearing before an impartial ALJ. Today we will admit evidence and take testimony. When we are done I will prepare and publish a decision. I’m not bound by any prior decisions in your case. Other people in the room are the hearing reporter whose job it is to make a record of the proceedings and a vocational witness, Ms. Wright.

Ms. Wright does not work for the Social Security Administration. She is an independent vocational consultant whose job it is to assess the occupational impact of various restrictions you may have. She will let us know whether those restrictions would have an adverse affect on your past work as well as your ability to perform other work in the local, regional, and national economies.

That in a nutshell is what we will be looking at today. What kind of health problems you have, whether those problems are severe, how those problems limit you, and how those limitations impact your ability to perform not only your past work but also your ability to sustain any other work that exists in significant numbers.

Finally you will see a microphone in front of you. Please talk in a conversational volume so we can hear you and so your voice gets properly recorded. If you mumble or talk low we may have to come back and do this all over.

Finally the microphone cannot pick up motion. If you point to something and say this hurts whoever listens to the tape will not know what you mean. Does that make sense?

Ken: Yes sir.

Judge: Good. Any objections to the exhibits of record?

Moderator: The ALJ is asking the attorney about any objections as to the proposed evidence. The hearing officer will produce a CD of your proof.

You can ask your attorney for a copy. Most of the evidence is almost always going to be admissible. Many objections go to the weight of the evidence, not to its admissibility.

One area that is always objectionable is other people’s proof in your file. If there’s a medical record on someone else that is objectionable and the offending material is stricken.

Judge: Show the proposed exhibits 1-A through 30-F admitted. Is there anything outstanding? Do we need to keep the record open?

Moderator: The ALJ needs to know if you have outstanding requests for medical reports, records, assessments, and so forth. This is fairly common. Most ALJs will allow a few weeks after the hearing to secure final proof.

Attorney: Yes, sir I have one request from a treating medical provider, ten days sir?

Judge: Show the record open for ten days after the completion of testimony.

Counsel any problem with your client taking an oath?

Attorney: No sir.

Judge: Mr. Brandt please raise your right hand.

Do you hereby swear or affirm to tell the truth, the whole truth?

Ken: Yes.

Moderator: Some ALJs like the attorney to give a brief opening statement that summarizes the medical proof and gives the ALJ; literally, a how and why the case should be paid. Your attorney can tell you if your ALJ requires this type of opening.

Attorney: Yes sir, I would. I’ll be brief your honor. The first thing I’d like to point out is that my client has rock solid earnings for the last 20 years. I think that speaks volumes about his work ethic the implication being if he could work he would because it’s what he’s done all his life. By way of objective medical proof sir, this man’s had two spinal surgeries. You will find that the first op note was 9/22/08; it’s in Exhibit 6-F, page 2 sir. That was a fusion. The fusion actually failed Your Honor and he went on to have a second spinal surgery that date being 4/3/09 and you will find that in Exhibit 12-F, page 8 Your Honor. I think the objective evidence in this case is compelling sir. I think my client’s very credible and I hope that when you reach the merits of the case you’ll find for [inaudible 00:05:05]

Moderator: The attorney might continue with the additional details. We are now about to start the testimony. Some ALJs do all the talking. Some let the attorney talk and some fall somewhere in between. The point is to follow the leads of your attorney. If the ALJ asks most questions pertinent to your case then your attorney will not have many questions left to ask. There are no bonus points for repeating the ALJ’s questions so don’t take it on your attorney if your ALJ asks most of the questions.

Judge: Okay then, I’ll ask some questions and then let your attorney take over. Let’s make sure we have the name and address correct. I have Ken Brandt, 2720 Golden Lane, Louisville, Kentucky 40223. Is that correct?

Ken: Yes.

Judge: I have your date of birth as 3/2/1958 making you 50 as of the date you became disabled and 52 today. Is that correct.

Ken: Yes.

Judge: I have you as a high school graduate, no college, no trade school. Is that correct?

Ken: Yes.

Judge: Can you read and write?

Ken: Yes.

Judge: Add and subtract?

Ken: Yes.

Moderator: The ALJ continues to get basic information in this portion of the hearing.

Judge: Any work of any kind since May 2, 2008?

Ken: No sir.

Judge: You had some third quarter 2008 earnings reported on your Social Security number. We ran these earnings queries just before the hearing. This tends to suggest you may have worked in the third quarter of 2008 which is after you became disabled. Can you tell me what that represents?

Ken: Yes. I had some sick pay and vacation time due when I resigned. I have the pay stubs that show that.

Judge: Okay then, counsel can you get me a copy of those stubs so I can put them in the record? I have no doubt here that this man was not working but you never know who looks at these records down the road.

Moderator: Here the ALJ is protecting everyone from delays in the case. The SSA runs queries to check and see if there are any reported earnings after the date that the claimant indicated that he or she became disabled. If there are reported earnings for any reason, such as work activity, insurance payments, sick or vacation leave then the ALJ will need an explanation. You should always let your attorney know about any earnings especially if you were working.

Judge: Your attorney provided a very detailed written description of the exertional demands of your past work. It is in Exhibit 14-E. Let me show it to you.

Is that description accurate?

Ken: Yes. My attorney and I worked on this together. He explained to me the detail you’d need as far as the lifting and the standing and the walking and sitting. I might add the job was very fast paced.

Judge: I would expect that. Let me ask the VE something.

Ms. Wright are you satisfied with the quality of the vocational exhibits in the file, especially Exhibit 15-E? I will need you to provide a job analysis from a skill and exertional perspective.

Ms. Wright: Yes sir. It’s more than adequate for my purposes.

Judge: Counsel, if it is agreeable we can dispense with further job descriptions. The record is extremely well developed in this regard. There was only one job in the last 15 years. The VE is satisfied as am I.

Attorney: Yes sir, that will be fine. Thank you.

Judge: Mr. Brandt I’m going to let your attorney take over and examine you as to what is wrong with you and how that makes you disabled under the SSA rules. Counsel, proceed.

Moderator: The ALJ turns the questioning over to the attorney. Remember some ALJs do this themselves. Just ask your attorney how your ALJ proceeds. We pick up during the testimony.

Attorney: Thank you sir. Mr. Brandt, even though I’m seated beside you asking you questions I really want you to direct your testimony towards the Judge. He needs to hear you to be able to help you. I know it’s a little awkward but go ahead and look that way as you answer the questions if you would please. By the way, if you don’t understand one of my own questions just let me know. I’ll make any clarifications you need. I want to talk about why we’re here today and what’s wrong with you. Tell me what part of your body is injured sir?

Ken: It’s my lower back. I fell backwards and kind of twisted. I felt a pop and then a warmth in my lower back.

Attorney: After this fall did you go to the ER?

Ken: Well I went the next morning. My back was killing me. They gave me a shot and took some X-rays, told me to go see my own doctor which I did the next morning. He ordered more X-rays and set me up for physical therapy, which was a bust.

Three weeks later my back was still killing me. I was having pain in my leg then so he sent me in for an MRI.

Attorney: Okay, so you had both back pain and leg pain sir?

Ken: Yes.

Moderator: Testimony continues on what happened leading up to and after the second surgery. There was a good description of the claimant’s pain as part of a hearing. Most ALJs are interested in the claimant’s opinion about what he can and cannot do.

We pick up with questions about current activity.

Attorney: How long can you stay seated in an upright chair at one time sir?

Ken: Fifteen to twenty minutes at one time.

Attorney: Standing and walking, are you limited in that sir?

Ken: Yes. Uh …

Attorney: Go ahead

Ken: I can’t walk far without having to sit down.

Attorney: Can you give me an idea of what far is these days?

Ken: Mm, across a room, sometimes a little longer, not much. If I do manage, you know if I manage a trip to the store I have to double up on the pain meds. I have to lay down as soon as I get home. There’s days I even need help, I need help getting dressed. I can’t bend well so just putting on my socks and shoes can be a challenge.

Attorney: What about lifting and carrying? Is there a weight or object you’ve learned you won’t go beyond or that bothers you?

Ken: I avoid that. Maybe a gallon of milk but not too often. I try not to lift from the floor because I hate bending.

Attorney: Okay, I think I understand. Sometimes it helps the judge understand a level of your pain if you rate it. We typically use a pain scale of zero to ten here. Zero’s basically pain free, you’re back at your job. Things are good. Ten’s horrible knock me out pain, ready for more surgery kind of stuff. Can you tell me on average most days, most of the time where do you rank your pain sir?

Ken: I’d say most days at an eight with the pain meds if I’m careful.

Attorney: Never relaxed then?

Ken: No.

Attorney: I’ll tell you what. Just put this out plain. Tell this judge why you can’t work anymore.

Ken: Well, it’s just the chronic pain. I can’t function well anymore. Like I said there’s days I need help getting dressed. I … it kills me to bend. Putting on my socks and shoes it’s just a challenge.

Judge: I’ve heard enough. Let me just ask the VE something. Ms. Wright characterize the past work please.

Ms. Wright: The past work was medium in exertion per the DOT. At times heavy per the vocational exhibits, semi-skilled in nature with an SVP of a three to four depending on the job task on any given day. The job description and the DOT description are similar. The exception being that he may lift over 50 pounds depending on the work flow and that’s not uncommon.

Moderator: Here the VE characterizes the past work in terms of its physical exertion and the skill required to do the work. There is a resource called the DOT and the VE usually relies on it to characterize the work. The ALJ has to compare what he thinks you can still do physically and mentally against the demands of your past work to see if you can still do it.

Judge: Any skills transferrable to sedentary work?

Ms. Wright: No.

Judge: Would there be … okay, assume I have a hypothetical worker of the same age, education, and work experience. This worker is limited to at best, sedentary work but that such work must have an option to stand briefly every 30 to 45 minutes, no more than occasional bending, and the worker must have a cane available to him. Could he do his past work?

Ms. Wright: No.

Judge: would there be any light exertional work?

Ms. Wright: No.

Judge: Okay. If I accept his self-described functional limitations to include the incidents of pain as he relates it, his postural limits on sitting, standing and walking would there be any work he could perform in the national economy?

Ms. Wright: No. He cannot maintain a posture long enough and he would experience frequent lapses in concentration on job tasks either of which precludes all work.

Judge: There are some state assessments that include 3-F and 9-F. If I find those credible and controlling could he do his past work?

Ms. Wright: No.

Judge: Any light work?

Ms. Wright: Yes. A limited range of light work.

Moderator: Up until this question things were going very well. The VE kept saying no jobs. With this question the VE found certain jobs. What happened was the ALJ asked the VE about some other medical opinions and proof in the record. In this case the proof was medical evidence from non-treating, non-examining physicians employed by state agencies. These are called state agency assessments and they show up in just about every case. The SSA has contracts with each state. Employees of those state agencies end up making the lower level medical determinations in most cases. Here the ALJ is showing that he is aware of those assessments and that he will factor them into his decision.

The ALJ has to show that he is aware of the medical opinion proof in the record no matter what its source. For example, if the SSA sent you out for an exam there would be a report, and the ALJ would create a question from it or at least comment upon it in his final decision.

Judge: Okay. There was considerable medical evidence admitted after the last state agency assessment, and it is quite compelling. Further I find this man credible. All in all I find there is sufficient evidence to allow me to determine a more appropriate and more limited RFC for this man.

Moderator: The way this hearing is going there is no need for the attorney to cross-examine the VE. In many other cases the VE will identify certain jobs. Your attorney can then ask the VE specific questions about those jobs.

Judge: I have all I need. Thank you for coming in today. I will try to get a decision published as soon as possible.

Brian: over the years our clients have asked many of the same questions about the hearing process. In an effort to address some of the questions you may have we offer the following advice.

You can expect the hearing to last approximately 45 minutes to an hour.

Please arrive at least 45 minutes early for your hearing. You don’t want to be late.

Remember the hearing’s informal and you’re not required to dress up. Wear clothing that’s comfortable but respectable.

Important: You’ll be required to undergo a thorough search by a security officer upon arrival at the hearing office. Please bring identification but do not bring any knives, pepper spray, or other weapons to the hearing. If you bring your cell phone, don’t forget to turn it off before entering the hearing room.

Remember, your hearing will be recorded. It’s important for you to keep the microphone close, speak clearly, and keep your voice up when answering questions. Shaking and nodding your head won’t do. Neither will pointing at a part of your body without stating out loud what part to which you’re pointing. Also uh-huh and uh-uh answers don’t work. Say yes and no instead.

The most important thing about a Social Security disability hearing is to tell the truth and to focus your testimony on how the symptoms you experience both physical and mental limit your ability to work activities on a full-time basis. 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. The judge will likely ask you how far you can walk, how much you can lift, how long you can stand, and how long you can sit. You should be prepared to give the judge accurate estimates of what you can do. Therefore it’s important to think about these things before your hearing. You’ll also want to discuss your limitations with your attorney before the hearing.

Most judges won’t tell you if you’ve won, although a few will. Instead the judge’s written decision will usually be mailed to you within two months of the hearing. Your copy and your lawyer’s copy of the decision are supposed to be sent to each of you on the same day. But when your decision arrives make sure that your lawyer received a copy as well.

Thanks for watching. I hope this presentation has helped you better understand what happens during a Social Security disability hearing. If you know of someone else who could benefit from watching this video please feel free to share it with them. If you would like additional copies or have any questions please call us at the Gillette Law Group.

Remember from initial application through final appeal, we’re here to help you.

Brian: Hi. I’m attorney Brian Gillette of the Gillette Law Group. I became a lawyer because I enjoy helping people. Over the years the Gillette Law Group has helped many people get the Social Security Disability benefits they need and deserve.

This video was designed to help you understand what happens during a Social Security Disability hearing. While this presentation doesn’t cover everything that happen at your hearing we hope it will answer many of your questions and reduce any anxiety you may have as you await your hearing. As you watch you may want to keep a pen and paper handy. Write down the topics you wish to discuss with us later. After finishing this video keep watching for a few extra tips we offer our clients at the Gillette Law Group.

Judge: Good morning. Are you Mr. Ken Brandt?

Ken: Yes.

Judge: Good morning Mr. Brandt. My name is Judge Crenshaw and I am the ALJ assigned to hear your case. We are here today because you requested a hearing before an impartial ALJ. Today we will admit evidence and take testimony. When we are done I will prepare and publish a decision. I’m not bound by any prior decisions in your case. Other people in the room are the hearing reporter whose job it is to make a record of the proceedings and a vocational witness, Ms. Wright.

Ms. Wright does not work for the Social Security Administration. She is an independent vocational consultant whose job it is to assess the occupational impact of various restrictions you may have. She will let us know whether those restrictions would have an adverse affect on your past work as well as your ability to perform other work in the local, regional, and national economies.

That in a nutshell is what we will be looking at today. What kind of health problems you have, whether those problems are severe, how those problems limit you, and how those limitations impact your ability to perform not only your past work but also your ability to sustain any other work that exists in significant numbers.

Finally you will see a microphone in front of you. Please talk in a conversational volume so we can hear you and so your voice gets properly recorded. If you mumble or talk low we may have to come back and do this all over.

Finally the microphone cannot pick up motion. If you point to something and say this hurts whoever listens to the tape will not know what you mean. Does that make sense?

Ken: Yes sir.

Judge: Good. Any objections to the exhibits of record?

Moderator: The ALJ is asking the attorney about any objections as to the proposed evidence. The hearing officer will produce a CD of your proof.

You can ask your attorney for a copy. Most of the evidence is almost always going to be admissible. Many objections go to the weight of the evidence, not to its admissibility.

One area that is always objectionable is other people’s proof in your file. If there’s a medical record on someone else that is objectionable and the offending material is stricken.

Judge: Show the proposed exhibits 1-A through 30-F admitted. Is there anything outstanding? Do we need to keep the record open?

Moderator: The ALJ needs to know if you have outstanding requests for medical reports, records, assessments, and so forth. This is fairly common. Most ALJs will allow a few weeks after the hearing to secure final proof.

Attorney: Yes, sir I have one request from a treating medical provider, ten days sir?

Judge: Show the record open for ten days after the completion of testimony.

Counsel any problem with your client taking an oath?

Attorney: No sir.

Judge: Mr. Brandt please raise your right hand.

Do you hereby swear or affirm to tell the truth, the whole truth?

Ken: Yes.

Moderator: Some ALJs like the attorney to give a brief opening statement that summarizes the medical proof and gives the ALJ; literally, a how and why the case should be paid. Your attorney can tell you if your ALJ requires this type of opening.

Attorney: Yes sir, I would. I’ll be brief your honor. The first thing I’d like to point out is that my client has rock solid earnings for the last 20 years. I think that speaks volumes about his work ethic the implication being if he could work he would because it’s what he’s done all his life. By way of objective medical proof sir, this man’s had two spinal surgeries. You will find that the first op note was 9/22/08; it’s in Exhibit 6-F, page 2 sir. That was a fusion. The fusion actually failed Your Honor and he went on to have a second spinal surgery that date being 4/3/09 and you will find that in Exhibit 12-F, page 8 Your Honor. I think the objective evidence in this case is compelling sir. I think my client’s very credible and I hope that when you reach the merits of the case you’ll find for [inaudible 00:05:05]

Moderator: The attorney might continue with the additional details. We are now about to start the testimony. Some ALJs do all the talking. Some let the attorney talk and some fall somewhere in between. The point is to follow the leads of your attorney. If the ALJ asks most questions pertinent to your case then your attorney will not have many questions left to ask. There are no bonus points for repeating the ALJ’s questions so don’t take it on your attorney if your ALJ asks most of the questions.

Judge: Okay then, I’ll ask some questions and then let your attorney take over. Let’s make sure we have the name and address correct. I have Ken Brandt, 2720 Golden Lane, Louisville, Kentucky 40223. Is that correct?

Ken: Yes.

Judge: I have your date of birth as 3/2/1958 making you 50 as of the date you became disabled and 52 today. Is that correct.

Ken: Yes.

Judge: I have you as a high school graduate, no college, no trade school. Is that correct?

Ken: Yes.

Judge: Can you read and write?

Ken: Yes.

Judge: Add and subtract?

Ken: Yes.

Moderator: The ALJ continues to get basic information in this portion of the hearing.

Judge: Any work of any kind since May 2, 2008?

Ken: No sir.

Judge: You had some third quarter 2008 earnings reported on your Social Security number. We ran these earnings queries just before the hearing. This tends to suggest you may have worked in the third quarter of 2008 which is after you became disabled. Can you tell me what that represents?

Ken: Yes. I had some sick pay and vacation time due when I resigned. I have the pay stubs that show that.

Judge: Okay then, counsel can you get me a copy of those stubs so I can put them in the record? I have no doubt here that this man was not working but you never know who looks at these records down the road.

Moderator: Here the ALJ is protecting everyone from delays in the case. The SSA runs queries to check and see if there are any reported earnings after the date that the claimant indicated that he or she became disabled. If there are reported earnings for any reason, such as work activity, insurance payments, sick or vacation leave then the ALJ will need an explanation. You should always let your attorney know about any earnings especially if you were working.

Judge: Your attorney provided a very detailed written description of the exertional demands of your past work. It is in Exhibit 14-E. Let me show it to you.

Is that description accurate?

Ken: Yes. My attorney and I worked on this together. He explained to me the detail you’d need as far as the lifting and the standing and the walking and sitting. I might add the job was very fast paced.

Judge: I would expect that. Let me ask the VE something.

Ms. Wright are you satisfied with the quality of the vocational exhibits in the file, especially Exhibit 15-E? I will need you to provide a job analysis from a skill and exertional perspective.

Ms. Wright: Yes sir. It’s more than adequate for my purposes.

Judge: Counsel, if it is agreeable we can dispense with further job descriptions. The record is extremely well developed in this regard. There was only one job in the last 15 years. The VE is satisfied as am I.

Attorney: Yes sir, that will be fine. Thank you.

Judge: Mr. Brandt I’m going to let your attorney take over and examine you as to what is wrong with you and how that makes you disabled under the SSA rules. Counsel, proceed.

Moderator: The ALJ turns the questioning over to the attorney. Remember some ALJs do this themselves. Just ask your attorney how your ALJ proceeds. We pick up during the testimony.

Attorney: Thank you sir. Mr. Brandt, even though I’m seated beside you asking you questions I really want you to direct your testimony towards the Judge. He needs to hear you to be able to help you. I know it’s a little awkward but go ahead and look that way as you answer the questions if you would please. By the way, if you don’t understand one of my own questions just let me know. I’ll make any clarifications you need. I want to talk about why we’re here today and what’s wrong with you. Tell me what part of your body is injured sir?

Ken: It’s my lower back. I fell backwards and kind of twisted. I felt a pop and then a warmth in my lower back.

Attorney: After this fall did you go to the ER?

Ken: Well I went the next morning. My back was killing me. They gave me a shot and took some X-rays, told me to go see my own doctor which I did the next mor