FM/CFS/ME RESOURCES - U.S. Social Security Disability Hearing Information

 

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U.S. DISABILITY HEARING INFORMATION

I remember how nervous I was before I had my hearing. My attorney never explained to me what the process was, or what I could expect. I was lucky, after fighting with the Social Security Administration for two years, I was finally awarded social security disability. The links below will provide you with the necessary information to prepare for your disability hearing.


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The Order In Which Things Happen

Judges usually begin disability hearings by reciting the case history of your case and stating the issues to be decided. Judges usually say that in order to be found disabled you must be "unable to perform substantial gainful activity which exists in significant numbers in the economy, considering your age, education and work experience."

The judge may question you first. And when the judge is done, the judge will give your lawyer a chance to ask you some questions. Some judges expect lawyers to handle most of the questioning. If so, answer questions asked by your lawyer the same way you'd answer them if a stranger were the one asking the questions. Sometimes a claimant may give less than complete answers when his or her lawyer asks questions, because the lawyer knows a lot about the case already. So, 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 really important for your case to bring at least one witness to your hearing to testify in support of what you say, to give the judge details about your impairments 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. Even if you're told you've won, the judge still must write a decision, which will be mailed to you with a copy to your lawyer. Sometimes it takes quite a while for the decision to come out.

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Tips For Testifying At Your Hearing

The following links are tips that will help you in your quest for disability. Select the one you'd like to learn more about.

Arrive Early
Arrive for your hearing about a half an hour early. Any earlier is not necessary. Disability hearings usually start on time, so whatever you do, don't be late.


Don't Talk About Your Case
When you come for your hearing, remember, social security hearings are serious business. Don't make jokes. Indeed, 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.


The Hearing Room
A social security hearing room is held in 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. Hearing rooms often have a desk for the judge that sits on a small riser so it's slightly above the level of the conference table where you will sit.


The Tape Recorder
The most important equipment in a hearing room is the tape recorder. It's used to record your hearing. Because your hearing will be recorded, it is important for you to speak clearly when you answer questions. When answering questions refrain from shaking your head, pointing to a part of your body, or saying "uh huh" or "huh uh". Try to respond by saying "yes" and "no" if you can.


People In The Hearing Room
You will be seated at the conference table along with your attorney. Also seated at the conference table will be the judge's assistant who operates the tape recorder. 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, too. 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.


Informal Hearings
Social security hearings are much less formal than court hearings. Although this is an informal hearing, there are a couple of procedures that are necessary to follow. First, you and all witnesses will testify under oath. Second, it's important that you not ask for help from anyone in the room when you are testifying. Only one person is allowed to testify at a time. It's important that your witnesses or friends do not chime in to help you testify.


The Administrative Law Judge
The person who presides in a social security hearing is an administrative law judge. 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 sort of respect that you would pay to a court judge.

The judge's job is to issue an independent decision, which is not influenced by the fact that your case was denied at the time of your initial application and on reconsideration. In fact, judges do issue independent decisions, with more than half of their decisions nationwide being in favor of the claimant. These are the best odds of winning at any step in the entire social security appeals system.

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 not your adversary. The judge is not your opponent. The judge's job is to find out the facts.

Don't ask the judge any questions about your case. For example, don't ask, "Why have I been denied?" "Why is it taking me so long to have a hearing?" and so forth. It is best to focus on the facts of your case, to give the judge the best possible reasons to find you disabled. 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.


Testify Truthfully
The most important thing about a social security hearing is telling 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.

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 you want the judge to know about why your condition prevents you from holding a job. You need to provide enough facts, details, and explanation in your testimony to make it obvious to the judge that you are disabled.


Work and Educational History
For work history, you will be asked to describe job duties on your last job and on all significant jobs you've had during the past fifteen years. The judge will want to know how much weight you had to lift on each job and about how much time during the workday that you spent sitting, standing and walking on each job. The judge will 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 like a job interview in which people often have a tendency to try to puff up their job skills. Guard against any such tendency.

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 all 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 may 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 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.


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 fibromyalgia" etc. Lots of people who can and do work have the same impairment. 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.


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.


Estimate of Limitations
If a friend asks you how far you can walk, you probably start thinking of places you have walked 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. Be as detailed as possible.

Also, be aware that there is a built in ambiguity in a judge's question concerning how long you can stand, how much you can lift, how far you can walk, and so forth. Judges always ask the question just that 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?" What the judge needs to know, of course, 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.

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How the Judge Determines Disability

The Social Security Administration looks 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. In other cases, the majority of cases, you usually have to prove two things. First, you have to prove that your medical impairments prevent you from performing any job you've done in the past fifteen years. Second, you have to prove that there aren't very many other jobs you are capable of doing considering your age, education and work experience.

A lot of people have heard the language "totally and permanently disabled." This phrase, which comes from worker's compensation cases, does not apply in social security disability and SSI disability cases. First, for social security, you don't have to be "permanently" disabled. You only have to be disabled for 12 months.

Second, 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.

The rules used 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, a heart condition,etc., your lawyer will be able to look at the rules and figure out just what you've got to prove.


Conclusion

Your hearing will be over in an hour or an hour and a half or so. Seldom do hearings take more than two hours. If you're well prepared your lawyer may not have to ask many questions at the hearing. In hearings with judges who like to ask most of the questions, it's only where issues are not developed or your lawyer thinks that your test

The written decision will be mailed to you with a copy to your lawyer. Sometimes, written decisions come out fairly quickly. (Fairly quickly for a hearing decision is about a month.) It is not uncommon for it to take three months or even much longer for a hearing decision to be mailed to you. 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.

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What To Do At Your Hearing
  • Tell the truth
  • Neither exaggerate nor minimize your symptoms.
  • Know your present abilities and limitations.
  • Provide relevant details and concrete examples but don't ramble on.

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What NOT To Do At Your Hearing
  • 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 "I worked all my life" or don't say, "I know I can't work."

  • 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 this, 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.

  • Don't compare yourself to others. "I know a guy who has nothing wrong with him but he gets disability benefits." Comparisons like that will not help your case.

  • Don't try to play on the judge's sympathy. It won't help. 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.

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