by Scott E. Davis, Esq.
Disability Attorney
Perhaps the most intimidating part of filing a claim for disability
benefits is having to appear before an Administrative Law Judge for
a hearing.
Dejected your claim was denied, you think “why bother– the judge
will just agree with Social Security’s decision to deny my claim?”
In resignation, you believe it is better to withdraw your claim than
appear before a judge. To be sure, these thoughts are valid and
understandable.
Unfortunately, they’re misplaced and not based on how disability
hearings and judges actually work. A hearing is not as intimidating
or fruitless as most people fear.
Indeed, most claimants will appear before a Social Security judge
before their claim is approved. Historically, judges approve
disability claims more often than they deny them! Put another
way, judges agree with you more often than they agree with Social
Security.
Throughout my career I have
traveled the country and appeared before over 300 Social
Security judges in over 40 states. More importantly, my firm wins
disability cases at a very high rate regardless of whether the judge
is in Las Vegas, Phoenix or Washington D.C. Thus, this article is
based on experience and relevant regardless of what city you or the
judge may reside.
Our experience is unique and
has provided a broad understanding of how judges evaluate disability
cases and conduct hearings.
In writing this article, I am
assuming you are not represented by a disability attorney. If you
are, I suggest consulting with them regarding what s/he believes you
should do to prepare for a hearing.
What follows are several tips
that will significantly increase your odds of winning your case, let
me share them:
Tip #1: A Social Security
disability hearing is generally
non-adversarial and not intimidating
Most people believe the
hearing will be an intimidating and scary event. This is not true.
The overwhelming majority of
judges I have appeared before are independent minded,
non-adversarial and interested in listening to the case. Yes, there
are judges who are rude, unpleasant and cared less– but this is the
exception, not the rule.
Hopefully, if you draw a
difficult or conservative judge, your case will be so well
documented the only reasonable conclusion any person could arrive at
after reviewing the evidence is that you are disabled. Hearings are
always tape recorded and you can appeal an unfavorable decision; the
tape tends to keep judges in line.
I have consistently found
judges to be cordial while giving my client’s case the attention it
deserves. So put your mind at ease and stop expecting a horrible
experience at the hearing - because it rarely occurs. Remember, judges approve more
disability claims than they deny.
Tip #2:
Hire an attorney who concentrates on Social Security
disability law
to represent you at the hearing
After filing your Request for
Hearing before an Administrative Law Judge, the next step should be
to hire an experienced disability attorney to represent you. Why?
Congressional statistics confirm that attorney representation
significantly increases the odds of winning your case. Second,
you only pay a fee if you win your case; you have nothing to lose.
You really should hire a
disability attorney well before the hearing level and as soon as
possible after you file your claim. Throughout your lifetime, the
claim could be worth hundreds of thousands of dollars and
Medicare health insurance benefits – why go it alone when
you only pay a fee if you obtain benefits? If you can represent
yourself before a judge – are you really disabled? Ask this question
– do you know what you must prove to win your case?
The case development a
knowledgeable disability attorney conducts to prepare a case for
hearing is usually extensive and involves complex federal law. An
unrepresented person who does no development places too much faith
in the system and the judge. While judges are cordial – they have an
obligation to be fair to all parties; common sense dictates not
everyone is disabled so someone’s case has to be denied - will it be
yours?
Representing yourself is
tantamount to hoping your claim will be approved. Under
federal law, you have the obligation to prove you are
disabled – Social Security will generally not prove your case for
you. Indeed, if it had, your case would have already been approved.
Hire a disability attorney -
don’t be penny wise and pound foolish with your future.
Tip #3: Social Security
Disability cases are usually won
before the day of the hearing
The importance of hiring a
disability attorney is evident in the fact that most disability case
are won before the day of the hearing. Why? Success is very
dependent on paper evidence: updated medical records, specific
medical opinions regarding your ability to work from treating
physicians, vocational issues, non-medical evidence and your
credibility.
A seasoned disability attorney
will successfully develop your case so the judge has the relevant
paper evidence prior to your hearing. After review, the judge will
form an impression of the strength of your claim. The hearing then
is a time for the judge to listen to your story, make an assessment
of your credibility and s/he does this by comparing the paper
evidence to your testimony at the hearing. If the paper evidence is
strong and the judge believes your story that you are unable to
work, your claim will almost always be approved. If your story is
different than the paper evidence or inconsistent you may have
problem.
A seasoned disability attorney
will review the evidence prior to the hearing to determine strengths
and weaknesses. Understanding weaknesses in your case is critical to
success at the hearing.
Tip #4: Prepare for questions
the judge will usually ask at the hearing
The day of the hearing, I like
to meet with a client an hour to an hour and a half prior to the
hearing. This allows time to cover basic questions that will be
asked and to address specific issues with the client’s case. This
preparation is analogous to having the test answers before the exam.
The result is the client understands the hearing process, and can
formulate answers that give maximum impact. Hearings usually last
one hour.
I have clients dress in
Saturday morning casual attire. A hearing is not a fashion show. The
judge needs to see you on a bad day; because if you were working,
every day would be a bad day. This means no makeup, no jewelry, no
fingernail polish –the judge should see you have problems with daily
care. Never exaggerate or present a false front – the goal is to
appear as you would on a bad day.
Questions cover topics such as
personal history, including if you have worked since you became
disabled, work history, medical conditions that disable you and
physical and psychological limitations which prevent work.
Discuss the frequency,
severity and duration of specific symptoms, not just symptoms
themselves.
Considerable time will be
spent on what you are able to do with your medical conditions such
as how long you can sit, stand and walk for at one time, the weight
you can lift and carry and other physical capabilities. These
questions should be answered as if you are having a bad day and back
at work. In determining disability, Social Security wants to know
the most you can do if you were back at work every day.
Judges usually never ask
questions related to physical limitations in that manner. Judges
simply ask “how long can you sit for at one time?” The proper
question is “If you were working every day, how long can you sit for
at one time?” I advise clients to answer as if they are back at
work; the reason is they would clearly be capable of much less if
they were back at work (please see Social Security Ruling 96-8p).
If relevant, discuss
psychological issues such as memory/concentration problems,
emotional instability, not wanting to be around other people or the
public.
Remember to cover side effects
from medications that limit or prevent work.
Prepare to discuss your
typical day. You do not need to be bedridden 24/7 to win. There may
be some days you are bedridden, but not all days. Judges will
believe you are capable of household activity for short periods of
time, but that you cannot sustain it.
Judges will usually find you
credible if your paper evidence (i.e. medical records, doctors’
opinions) confirms you have had consistent and compliant medical
care and is consistent with your testimony.
Finally, testimony must be
honest, don’t avoid issues. If there are problems in your case,
judges appreciate acknowledgment and candid explanation.
Remember, preparation and
planning is the key to success, I wish you the best.
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