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What happens at the Hearing?
The hearing is your first opportunity to talk to someone about why you can’t work. Most
hearings last an hour or less. Increasingly, most hearings are conducted by video
teleconference which means the ALJ as well as experts he or she has asked to testify
(discussed further below) will not be in the hearing room but will be on a large
television screen. You and your representative will be in the hearing room (although I
have heard that some “national” firms only want you in the room and their employee
(the representative) in their office also on camera).
I represent clients at hearings adjudicated by ALJs from four ODAR offices (Denver
(which includes Casper and Rapid City), Colorado Springs, Albuquerque and Fargo).
Social Security has 141 ODAR offices nationwide and Puerto Rico staffed by about
1,200 ALJs. Data related to individual ALJs approval and denial rates is available on the
Social Security website as is a great deal of other information. (www.ssa.gov) I did a
cursory review of this data and found that there are ALJs with approval rates of over 96%
and others with approval rates of only 20% or so. As I said, it was cursory review. ALJs
are randomly assigned to cases so you don’t get to pick yours. I welcome the happy
day when I draw an ALJ with an extraordinarily high approval rate just as I become more
than usually cautious if I draw a judge with a low approval rate. Other than the
extremes I pay more attention to the development of the case in terms of what I know a
particular ALJ expects than I do the approval rates (even ALJs with high approval rates
usually have an expectation that the attorney is going to prepare his or her case).
Understandably, most claimants are nervous about the hearing. The ALJs, without
significant exception, are very courteous toward the claimants at hearing. Unlike the
television “judge” shows, there is no one in the hearing from Social Security to argue
with you about anything you say. The ALJ is making an informal inquiry as to why you
believe you are disabled from working which is why the proceeding is called a “hearing”
and not a “trial”.
In most hearings this will begin with questions from either the ALJ or your
representative as to why you can’t work. These questions are usually couched in terms
of what you can and cannot do. These questions typically ask you how long you can
stand, sit, walk, what you can lift and so on. The ALJ will usually ask you about your
daily activities such as doing the laundry, cooking meals or cleaning house. During this
process, you should always be yourself and answer honestly without exaggeration.
The ALJ usually has the medical records that tell him a lot about your impairments.
One of the ALJ’s primary functions is to relate your testimony to the written record to
determine if you are credible. I, or the ALJ, will usually ask follow-up questions to make
sure you have had the opportunity to say everything you want the ALJ to hear.
The ALJ, as mentioned above, will usually have one or two experts available to testify at
the hearing. Both of these experts are paid by SSA; however, each offers testimony
based on the record. Even though both are paid by SSA, their testimony is based on
their professional expertise. Neither is on SSA’s “side” nor yours.
One of these experts is called the “medical expert”. Medical experts do not appear at
hearings as frequently as “vocational experts”, below. The medical expert’s testimony
usually is directed at Step 3 of the Five-Step Social Security Disability adjudication
process which is whether or not the claimant’s impairment(s) meet or equal a Listing.
A Listing is an impairment defined in Social Security Regulations which, if the
requirements are met by medical evidence, calls for a finding of disability. If a medical
expert finds that a claimant meets or equals a Listing or Listings, and the ALJ accepts
that finding, the hearing is usually over with the result being a Favorable decision for the
If, however, that is not the result of the medical expert’s testimony, the hearing will
usually continue with your testimony and end with the vocational expert’s testimony.
The vocational expert’s (VE) testimony addresses Steps 4 and 5 of the process. The
ALJ will pose questions to the VE about what you can do physically and/or
psychologically. The VE will testify, first, as to past jobs you have done as well as
whether you can still do those using the limitations the ALJ gave him or her. If the VE
testifies that you can do your past relevant work in response to all of the questions the
ALJ asks, you will most likely be found Not Disabled at Step 4. If you cannot do your
past relevant work, the ALJ will go to Step 5 to determine if you can do any generally
available work in the competitive national economy. (The ALJ will typically ask this as a
series of questions called “hypotheticals”). If the answer is “no” to any of the
hypotheticals and the ALJ accepts that as the answer supported by the evidence and
your testimony, he or she will find you Disabled and issue a Favorable decision. Your
attorney, or you if you do not have an attorney, can cross-examine either or both of the
two experts following their testimony.
Step 1 is at the beginning of the five step process and is whether you are presently
working or not. If the answer is “Yes”, it can result in a finding of Not Disabled. Simply
working on the hearing date does not rule out a Closed Period, which I described
earlier, if medical evidence supports a finding of disability for at least one year after your
AOD and the date you were medically able to return to work.
Step 2 is whether you have a severe impairment or not. As discussed before, this step
does not typically present a very high hurdle.
The ALJ will sometimes indicate what his or her decision is at the hearing. Whether
that is the case at your hearing or not (most often it is not), it usually takes 30 to 60 days
to get the written decision which will then initiate the payment process if the decision is
Social Security Disability Attorney