Social Security attorney Gordon Gates wrote about a Social Security Administrative Law Judge (ALJ) who only approves 11 percent of cases.

In trying to find some insight in to how this ALJ could only approve 11% of cases when most other ALJs approve somewhere between 45-60% of cases, Gordon found the following post from the ALJ on a high profile public website:

Some doctors go overboard on diagnoses and treatment because they sense the “pot of gold” in having a fairly young patient on Medicare for many years to come with a reliable source of payment for constant treatment.

Lawyers and other non-attorney representative can receive fees as a percentage of the back benefits awarded to a claimant. Once a claimant has a legal representative, one can actually track how the alleged impairments become much worse, with new impairments and symptoms added as the case matures.

A judge with some experience can almost recite verbatim the same story we hear from virtually EVERY claimant, suggesting they have received training from the national organization of the claimants attorneys. The government is complicit in this boondoggle, because the Social Security Administration actually publishes lists of symptoms for various impairments in the form of rules for judges to follow. Is it any wonder we hear those lists of symptoms at almost every hearing?

The Judge’s quote is quite lengthy and covers a number of topics.  I encourage you to read it in Gordon’s article:  The 11 Percent ALJ.

While I can agree with the Judge on several points in the longer quote, I strongly disagree what the Judge says above.

Let’s set ‘em up and knock ‘em down:

Medicare as a “Pot of Gold”

The ALJ states that doctors are likely to “go overboard” with medical opinions to get patients approved for Social Security so the doctor has a “reliable stream of income” for years to come. 

In my experience, doctors generally do not want to provide any medical opinions and the hardest part of being an advocate for the disabled is trying to get doctors to make opinions in Social Security disability cases. 

Of course, the attorney’s and client’s attempts to get these medical opinions happens before the hearing and is typically invisible to the ALJ.

Additionally, there are two kinds of health insurance which come with Social Security:

1. Medicare - if you are approved for disability insurance (Title 2 - SSDI).
2. Medicaid - if you approved for Supplemental Security Income (Title 16 - SSI).

Many clients tell me that they cannot find a doctor to take them on if they are on Medicaid. The doctor’s office is either no longer taking Medicaid patients or they have taken all the Medicaid patients they can for the year.

Doctors often do not want to take Medicaid patients because they make less money on those patients than on other patients.  Medicaid is not any kind of “windfall” for doctors.

So, I wonder if the ALJ also believes that doctors are also likely to exaggerate opinions in SSI cases where the person will only get Medicaid?

Attorneys receive a percentage of the claimant’s back benefits.

Yes, attorneys do not work for free.  Neither does the Judge, the judge’s clerk, or his staff.  We all have to pay rent, buy groceries, and pay our utilities. 

But, don’t disability attorneys have a vested interest in finding everyone disabled.

Do firefighters have a vested interest in burning buildings?

Do cops have a vested interest in crime?

Disability attorney have a vested interest to the extent that we only get paid if our client wins. But, you could also say attorneys who take Social Security disability cases feel strongly enough about the disabled that we risk not getting paid for our work.

But, how do you know if you have an attorney who just wants to be paid versus one who genuinely cares about helping the disabled. That’s pretty simple.

Attorneys “train” their clients.

No.  We prepare our clients for the day that may change their lives forever.  

That’s just semantics!

I don’t think so. I do not tell my clients what to say. But, I go over their common hearing questions and their answers. Why?

• Time is short - Judges often schedule 30-45 minutes for each hearing. That the Judge’s comments, swearing in, Medical Expert testimony (in some cases), and Vocational Expert testimony.  
• You need to focus on what’s important. People have a natural tendency to drift off into other topics. With the limited time, I want to make sure my client does not miss a critical part of the case because we ran out of time.
• You need to address inconsistencies ahead of the hearing. A client may say something which appears to be inconsistent with their disability. Often there is an explanation. But, unless you work through the inconsistency before the hearing, the client may be too nervous at the hearing to provide an adequate explanation. 

Actually, it is pretty easy to tell when someone is just repeating something they were told to say. Most people are terrible liars, especially when faced with the stress of their Social Security hearing:

Ultimately, the coaching question comes down to this: good lawyers do not hide the problems in a case, they surmount them.  

Impairments and symptoms become worse as the case matures.

Well, of course they do!

When you work with a good attorney, he or she helps you find obtain the evidence that Social Security was not able to get or was unaware of. 

• I have seen bi-polar cases where none of the psychiatric records were obtained until the lawyer got involved.
• I have seen back injury cases where the spinal specialist’s injection records were not obtained until the lawyer got involved.

As more evidence is obtained, cases become better developed which means there is more relevant documentation of the impairments and symptoms. So, of course, impairments and symptoms “get worse.”

However, the ALJ seems to suggest that the actual condition(s) worsen AFTER the attorney is hired. That lawyers somehow add-on symptoms and impairments that do not exist to make their clients look worse than they actually are in order to improve the chances of winning the case. 

Allow me to present an alternative explanation: a benefit of regularly meeting with my clients is that they tell me how how they are feeling.  Often the conversations go like this:

You are starting to get migraines? Have you talked to your doctor? Why not bring it up at the next visit.

-or- 

The physical therapy isn’t helping. Maybe your doctor can send you to a specialist for a consultation?

Good Social Security disability attorneys help their clients get their conditions evaluated and documented.

Also, doctors are very good at telling when someone is exagerating symptoms, let alone, faking symptoms outright.

One of the purposes of getting medical records is to see if the symptoms reported at the hearing have been previously reported to the doctor AND whether the doctor found any exaggeration, malingering, “drug seeking behavior,” or “secondary gains issues.”

If a patient is exaggerating, it will show up in the medical records. 

Symptoms described at hearing parallel those in the government published “list of symptoms.”

The Judge is referring to the Social Security Listing of Impairments (aka The Blue Book).  The Listings describe conditions which Social Security views as “disabling” and the medical findings necessary to find a person disabled for those conditions. 

The Listings are literally a short-cut in the disability evaluation process.  If you have a condition described in the Listings and the medical evidence supports the severity required to be approved, you can be found disabled for “meeting a listing.”

The judge asks, “Is it any wonder we hear those lists of symptoms at almost every hearing?”

Let’s remember that the Listings are Social Security’s own attempt to create uniformity in how its technicians and Judges evaluate medical conditions.  The idea is that different people within Social Security should not have different standards on whether a condition, for example diabetes, is disabling or not. 

Is it fair to complain that people actually use the regulations Social Security has put in place for the evaluation of claims?

The Listings are not a free pass to disability.  It is not enough to have a condition described in the listing, you also have to have medical documentation (not just your say-so) that the condition meets certain medical requirements.  For example, here is the listing for chronic pulmonary insufficiency which may be used for COPD. Not only do you need to have a breathing test performed but your results must be within a particular range based on your height. 

I have had numerous clients with COPD and other respiratory conditions.  Very few have met the Listing.

However, when I have a case that does meet a listing, of course I will structure the presentation of the case around it. Social Security own guidelines says that the condition is disabling.

Are we all liars?

The sum of the Judge’s quote suggests that doctors lie, lawyers lie and claimants are trained to lie.

So, who is left? Ah, yes, the Social Security technicians and Social Security doctors who denied the case in the first place. 

Should anyone be surprised that this judge only approves 11% of cases?

I have no problem that Judges should approach disability cases with skepticism since they are the holders of the public purse strings. But, this goes beyond healthy skepticism and into cynicism.

Is this the right approach for reviewing Social Security disability claims at hearing? What is your opinion? Add a comment to let us know.

The long wait times in Social Security cases are prompting a backlash against Administrative Law Judges (ALJs) in Social Security cases.  

Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.

The problems in Portland reflect a broader national crisis, according to Social Security Administration records … Only about half the agency’s administrative law judges meet its minimum goal of clearing 500 cases a year.

….

In October 2007, Social Security Commissioner Michael J. Astrue met with a delegation of judges from around the country and … complained that many were not productive enough, according to the union that represents the judges. Astrue also accused them of not wanting to be subjected to any professional standards.

The commissioner has testified before Congress that the bulk of administrative law judges are hardworking. But he has griped about underachievers, and the agency set performance goals that ask judges to clear 500 to 700 cases a year..

Grab the pitch forks!  Light the torches!  It’s the judges’ fault!

Of course, things are not that simple.

The November 2008 Social Security Forum (published by the National Organization of Social Security Claimant’s Representatives — NOSSCR) also covered this topic:

Staff levels and a myriad other variables are important factors in ALJ [administrative law judge] productivity… Many ALJs ask for more hearings but support staff is overwhelmed and unable to prepare additional cases for hearing. 

Support staff in many government agencies are being cut, overtime is refused, and work days are reduced to 4 days a week.

Judges are not solely responsible for how many cases they can process. From my experience with the Colorado Springs ODAR (Office of Disability Adjudication and Review), everyone is working feverishly to try to get as many cases done as possible. 

What’s wrong with requiring Social Security ALJs to process 500 case a year?

Ultimately, it comes down to this:do you want Social Security hearing to be handled like a sausage factory?

Social Security hearings are the final step in the Social Security disability process where someone will:

• Personally review all the records (many cases have over a thousand pages of medical records); 
• Meet with you; and
• Hear your side before making a decision.  

Hearings are your day in court.  Hearings are a check against the bureaucracy of the Social Security system.

Do you really want to make the hearings more bureaucratic?

It makes me think of a sign at my mechanics,

We can do the work a) right, b) fast, c) cheap.

Pick two.

Slow pace of Social Security cases laid to judges, staffing - The Oregonian - Special Coverage from The Oregonian - OregonLive.com .

Would you like to know what percentage of cases the Administrative Law Judge (ALJ) assigned to hear your Social Security disability benefits, or Supplemental Security Income (SSI) case approves and denies?

In response to a Freedom of Information Act request by The Oregonian, the Social Security Administration released the production numbers and approval rates for all of its administrative law judges. The agency released complete reports for 2005, 2006 and 2007. The table for 2008 covers most — but not all — of the year.

Click below and enter the Judge’s name to see the statistics for that particular judge.

via Social Security database - The Oregonian - Special Coverage from The Oregonian - OregonLive.com .

Some words of warning:

As in the stock market, “prior results are no guarantee of future performance.” Just because a judge approves say, 65 percent of cases, does not mean you have a 65% chance of winning.

Your case is as good or as bad as the evidence in your file. These statistics will not tell you where the problems are in your case, or what you should do to resolve those problems.

To increase your chances of winning, the best advice I can give you is to work with an experienced attorney.

We have previously discussed that an individual is not eligible to receive Social Security disability benefits while incarcerated.  This issue frequently comes up when an individual already on Social Security is incarcerated.

However, it is important to remember that the prohibition on receiving Social Security benefits may also impact your application for Social Security benefits, if you were in jail or prison during the time you are alleging entitlement to Social Security disability benefits. 

For example:

• Let’s say you applied two years ago and that you are waiting for a hearing.  
• But, one year ago (during the period of alleged disability), you were in jail for a month.
• Social Security will not pay you benefits during that periods of incarceration.

Here is the problem that comes up:

Because you cannot get benefits during that incarceration, the judge may ask you for the exact dates of entry and release.  If you were incarcerated more than once, it may be difficult to figure out the dates for each one.

If you do not know the exact dates of your incarceration, your benefits may be delayed if you win, or the judge may not make a decision until you provide this information!

If you have any periods of incarceration during the time you claim you were disabled, have a list of the beginning and end dates of your incarceration ready before your hearing!

When you are waiting for your Social Security hearing, It can come as a shock to receive a letter telling you that your case has been transferred to different hearing office in a another state.  

Attorney Donald Chewning writes about this on the Wisconsin Disability Blog.

If you are awaiting a hearing before an Administrative Law Judge in Wisconsin you may have noticed that the hearing has been scheduled before a judge in California.  In my practice in northeastern Wisconsin,  most of my cases  would ordinarily be heard by judges from the Milwaukee Office of Disability Adjudication and Review (ODAR).  However, since March 2008 the Social Security Administration has shifted responsibility for cases normally heard by Milwaukee judges at the Green Bay and Oskhosh hearing offices to other ODAR branches.  For instance, cases heard at the Green Bay hearing office are being sent to the Oakland, CA ODAR.

For many people, having their case moved to another states causes a lot of worry and stress.

Why was my case moved?

What does it mean for my case?

How much of a delay is THIS going to cause?

Does Social Security think I can travel out of state for my hearing?

Often, there is a good reason for moving the case and it can actually help you!

Moving a case usually speeds up processing time.

Fortunately, having your case moved out of state usually means FASTER processing and LESS TIME waiting for your hearing.

When Social Security moves a case out of it’s home state, or to a different Office of Disability Adjudication and Review (ODAR) office, they are trying to ease the caseload on an overburdened office.  Cases that would otherwise be kept waiting, are moved to a less busy ODAR office.

As you know there is a wait time for a Social Security hearing varies greatly accross the country.  By moving cases around, Social Security hopes to balance out the more congested ODAR offices and reduce those 3+ year waiting times.

Don’t worry, you won’t have to travel out of state for your hearing.

When Social Security sends a case to another ODAR office, they either physically bring in the judge to your nearest ODAR office to hold the hearing, or they hold the hearing via video conference at your ODAR office. You go to your nearest ODAR office (Social Security will tell you where it is), and the judge stays in his/her home state.  The hearing is done over video.

Social Security is even expanding the video hearing system by building a new hearing division that will just handle video hearings in backlogged states.  

If you receive a notice that your case is being moved, don’t worry.  Nothing bad is happening.  Social Security is just trying to get your case done sooner.

Wisconsin Disability Blog.

The one thing people are most surprised about when they go to a hearing is that the lawyer does not do all of the talking.  In fact, it is the claimant (aka “you”) who has to answer the judge’s questions.  I hear a lot of questions and comments about this.  

I went to my hearing and my lawyer sat there like a bump on a log.

Why am I paying a lawyer, if I have I have to answer all of the questions?

What do you mean, I have to talk at the hearing; isn’t that what the lawyer is there for?

Why doesn’t a lawyer speak for you at the hearing? Why doesn’t her or she answer all the judge’s questions?

The reason is that a hearing is not a negotiation; a hearing is a mini-trail.

If you have seen Boston Legal, or any legal show on tv, you have seen the difference.

At the negotiation scene the two lawyers sit across the table from each other, trading barbs and telling their client not to say anything without the lawyer’s say so.  Then at the trial, the client gets on the witness stand and has to answer the two attorneys’ questions.

Hearings are like mini-trials:  there is a judge, witnesses and procedures like being sworn in.  It would be ridiculous to hold a trial and have an attorney testify for their client.  The judge does not want to hear the lawyer’s explanation of your disability, the judge wants to hear from you!  

As I have mentioned before, one of the main purposes of a hearing is to assess your credibility. The judge already has the objective evidence. The judge wants to see you.  See how you answer, see how you move, how you sit, see any problems you may have.

So, since you are the person claiming a right to disability benefits, you are typically the chief witness in your case.  There may also be other witnesses such as family members (who have witnessed what you are going through), medical professions and even vocational experts.  But, first and foremost, the judge wants to hear from you.

So, what does a lawyer do for me?

I work one-on-one with each of my clients to understand what they have been through, obtain proof of their disabilities through medical records and other evidence.  I also work with my clients, reviewing what they can expect at the hearing including what questions they are likely to be asked.

A good lawyer will help you prepare your case, and prepare you to go in front of a judge. So, by the time the hearing is scheduled, you are confident and ready.

I earlier noted that judges do not want the attorney’s explanation of your disability.  While it is true that judges generally do not the lawyer to act as a substitute witness, judges often want the attorney to provide the following:

• A quick summary of the case.
• Identify which doctors supports the disability claim.
• Identify the exact date of treatment and the page numbers in the Social Security file, where the favorable records appear.

One of the big things attorneys do is becoming familiar enough with your file to be able to quickly identify where a critical piece of evidence is located. You may hear this kind of interchange at your hearing:

Judge: What support do we have for the sciatic pain radiating into the left leg?

Attorney:  Dr. Smith is providing treatment for the low back pain generally.  Her records appear at exhibit 4F and 15F.  There is mention of this particular symptom on March 23, April 17, and May 27 at the following page numbers ….

This conversation may not happen at every hearing, and the attorney may not have every symptom cross-referenced  like this.  But, a skilled attorney will help the judge find the evidence necessary to put your claim in the best light.

I was recently asked where Vocational Experts get their information from?

There a number of sources Vocational Experts use:

• The Dictionary of Occupational Titles
• Selected Characteristics of Occupations
• Job surveys performed by the Vocational Expert
• Services Vocational Experts sign up for which provide job titles, requirements and national and regional job numbers. 

If you are working with a lawyer, he or she probably has at least some of these and can verify the skill level, exertional and non-exertional requirements of a jobs the Vocational Expert testified to.

I was recently asked the following:

I had my hearing today. The judge had a vocational rep come in to testify. He said I had two job options. … I live in a small town that probably does not offer the two jobs the vocational expert said I could do.

First, keep in mind that the Vocational Expert testifies about two things:

1. Job Titles. These are the kinds of jobs you can still perform despite your limitations. Examples of jobs the vocational expert may cite are call out operator, surveillance systems monitor, information clerk.
2. Incidence of jobs. This is the number of jobs for each job title.

Second, Social Security considers jobs on a national and regional level. The region is the state a person lives in. 

If there are a significant number of jobs which you can still do at a substantial gainful activity level in the regional economy, then you can be denied.  

What is a “significant number of jobs?

Rule of thumb: if the vocational expert says there are at least 1,000 jobs (not job titles) that you can still do in your state, you may be denied.  

So, if the Vocational Expert say that you can still work as an “Information Clerk” and that there are 30,000 jobs nationally, and 1,200 jobs in the region (state), you may be denied.  Note: these numbers are made up for this example.

But, what if there aren’t any “Information Clerk” jobs in my town?

Unfortunately, Social Security does not consider the avialability of the jobs cited are in your town, so long as they exist in your “region.”

It gets worse! Social Security also does not consider:

• The number of job openings for any of the cited jobs.
• Whether a person can actually get hired for one of the cited jobs. 

It is quite possible to be denied because you are able to do a job that does not exist in your home town. Or, there are no job openings.  Or, there are job openings, but you cannot get hired for that job.  

Social Security is a difficult system.  You just have to keep trying and it really helps to have a skilled lawyer with you navigate the Social Security system.

Here is part 2 of my discussion with attorney Jonathan Ginsberg as part of his SSDRadio podcast.

In case you missed it, here is part 1.

Under Social Security regulations, it is not enough to have a disability (a diagnosed medical condition). Your condition have to be severe enough to be prevent you from being able to engage in a “substantial gainful activity;” typically full time, competitive, employment.  If you cannot show that your condition keeps you from being able to work, you will probably lose your case. 

At the hearing, the Administrative Law Judge (ALJ) has a Vocational Expert testify about the the kinds of jobs are available, and how work-place limitations affect your ability to perform those jobs.  

Basically, the Vocational Expert answers two questions for the judge (phrased as hypotheticals):

1. Can you still perform any of the jobs you have done over the last 15 years?
2. Can you still perform any other jobs which exist in substantial numbers in the national economy?

The judge uses the vocational expert’s answers to decide if you can still work (and therefore, whether you are disabled).  This makes the vocational expert’s role extremely important!

Bloomington Illinois Social Security Lawyer Dirk May wrote an interesting article a while back about vocational experts:

What do you do when the judge turns to the vocational expert and gives him the hypothetical question?

You need to listen carefully to the type of limitations the judge provides to the vocational expert. If you have a limitation that he does not list or that is in your medical records you need to ask the expert about the effect the limitation would have on your past work.

The vocational expert will often be asked to provide examples of jobs you could perform based on your limitations. Once again, listen carefully for the types of jobs listed. If you do not understand the job duties ask for details. Listen for the exertional level, such as sedentary or light. Ask what makes the particular job sedentary or light.

As a Colorado Social Security disability lawyer, I have seen judges ask vocational experts two or sometimes three sets of hypotheticals based on different limitations.  

• The first set of hypotheticals may be based a form a Social Security doctor or technician filled out about your limitations.  
• The second set may be based on a what your doctors have said about your limitations.  This often gives you your best chance of winning.  You have gotten your doctors to describe your limitations haven’t you?  
• The last set of questions may be a mash up of what the Social Security doctor has said, what your doctor has said, and what you have said during the hearing. 

Here is the $64,000 question:  if the judge asks three sets of questions, and gets three different (even conflicting) answers … which set of answers will the judge use to decide if you are disabled or not?

The only way to even try to answer this is to have done a lot of hearings with that judge and really know the Social Security rules and regulations.  Only then, can you hope to read the judge.  In other words, you really need to have an attorney by your side.

Read the rest of Dirk May’s article here.

Did you hear any strange questions, or answers, at your Social Security hearing?  Share your experiences in the comments?

Be specific when answering the judge’s questions at your Social Security hearing.

Avoid answering a question with, “occasionally,” “sometimes” or “every once in a while.”  This is not specific enough.  

To you, “occasionally” may mean “every other day,” but the judge may interpret it as “a couple of times a month.”  As a Colorado Social Security lawyer, I have seen this happen!  A misunderstanding like this can mean the difference between winning and losing your case.

This is how specific you should be:

Question: “How often does your back bother you?”

Answer: “About three to four days a week. It usually lasts one to two hours, especially when I wash the dishes. I have to lie down afterwards for about thirty minutes.”

Look at how much information the answer provides:  frequency, duration, causation, result!  This is a great answer!

What if I have good days and bad days?

You can still be specific.  Even if you symptoms vary quite a bit, you should still be able to answer these questions:

• What kind of symptoms do you have on a normal day?
• What kind of symptoms do you have on a bad day?
• What kind of symptoms do you have on a good day?
• How many days per week (or months) are normal days? Good days?  Bad days?

I understand that this is not something which comes naturally to most people.  We are not machines after all.  

But, it is important to remember that the judge is using your answers to determine your work-place limitations.  The more specific you are, but more accurate the judge’s limitations will be.

Do you have a story about your hearing, or a question the judge asked you?  Tell us in the comments!

I am going to let you in on a secret.  In my years helping people with Social Security disability cases in Colorado, I have seen time and again judges respond to a positive attitude.  

Here are some questions I have heard judges ask:

What do you see for your future?

Where do you think you will be in a few years?

Do you see things getting better or worse for you?

Take a moment and consider how you would answer these questions…

How would you view the following response:

I am having a really hard time right now.  But I am hopeful.  I am seeing my doctor.  We are trying new things.  I don’t think I can do my old job.  But, I can see things getting better at some point. I want to go back to school so I can do an lighter job at some point down the road.

Now, consider this response:

My life is over.  Things just aren’t getting any better.  My doctors can’t do anything for me.  I don’t know what I am going to do.

The positivity of the first response is infectious.  The person is not conceding any current limitations.  Nor is he saying he is not disabled right now.  The person is simply hopeful for the future. 

The second response may be viewed negatively by judge.  Why? It is not the negativity of the response. There are certainly catastrophic injuries and illnesses which can make people feel that despondent.  

The problem is that the second response suggests the possiblity of a psychological or personality based magnification of symptoms.  That may seem like quite a jump to that conclusion.  But, it is a leap a judge may make. 

Please note:  I am not saying that depression is not real, or that you cannot get Social Security because of depression.  A substantial percentage of people I have helped, have won their cases due to depression.  I am simply saying that in my experience, judges respond better to a positive outlook than a negative one. 

Judges want to see someone who is positive about the future, and can visualize their condition improving to the point that they will be able to go back to work.

Whether you agree with this or not, it is something to keep in mind and you get ready for your hearing.

What are some of the odd question you, or someone you know, have been asked at a Social Security hearing?  Tell me in the comments.

Here is a useful exercise you can do to prepare for your hearing:  keep a journal of everything you do from the moment you wake up to the moment you go to sleep, including every time you take a break.  

Don’t worry.  You do not have to turn this in to anyone, not to your lawyer (although he or she should be aware that you are keeping the journal), and not to Social Security.  This is just for yourself.

But what good is it? 

At the hearing, the judge will ask you a number of questions about “Activities of Daily Living” or ADLs.  This includes some of the following:

• Can you drive a car?
• Can you cook a meal?
• Can you buy groceries?
• Can you make a bed?
• Can you do laundry?

Your disability might completely prevent you from doing some of these activities, but it is more likely that your disability limits how often, for how long, and how well you can do them.  

If the judge ask you, “how long can you cook?”  How would you answer?

If you say, “not very long,” you have not given the judge much of an answer.  Did you mean a few minutes, half an hour, two hours?  Do you want the judge to guess what you mean.  

In my experience with Social Security hearings in Colorado, it is critical that you can state exactly how long you are able to perform an activity before you need to take a break.  So you need to know how long you can stand before you need to sit down.

Try keeping a journal for a few days, then answer the following questions:

• Between 8am and 5pm, how many hours do you spend actively doing things?
• How much time do you spend, resting, lying down or taking breaks.  

I had a great discussion about the Social Security system and preparing for hearings with attorney Jonathan Ginsberg as part of his SSDRadio podcast.

Here is part 1.

Nate Craig of Truth of the Matter Asserted has a great article about what it means if a judge wants you to change the date you became disabled, or in Social Security parlance “amend your alleged onset date (AOD).”

Often, by the time the claimant’s hearing comes to be scheduled, the ALJ will review the file for the first time. During this review, the ALJ will determine if the onset date is established by the medical records. Most factors of a proposal to amend an onset date will be either a specific medical finding that seems to correlate with the claimant’s limitations or the claimant has earning posted to their earnings record, including unemployment benefits.

Long story short, if the Judge is asking you to amend the onset date, they essentially are going to award benefits.

Nate makes a great point, but there is one exception to this general rule of thumb:  SSI cases.

In a SSI (Supplemental Security Income) case, you can only get benefits back to the Protected Filing Date (PFD), the date you requested to file an application.  However, in many SSI cases I see in my Colorado practice, people (understandably and correctly) claim that their disability began when they stopped being able to work. Normally this is months before they ever filed for Social Security. 

I regularly see judges asking claimants to change their Alleged Onset Date (AOD) to the Protected Filing Date (PFD).  However, this is just a streamlining measure and does not necessarily mean the judge will approve the case. At least, not in my experience.

However, with this one exception, if the ALJ asks to amend the AOD to any other date, that is usually a good sign!

Read the rest of Nate’s excellent article here.  

Charles T. Halls’ Social Security News blog ran an interesting article about Social Security’s plan to expand the video hearing system.  Currently, video hearings take place with the claimant and their attorney (if they have one) at one ODAR (Office of Disability Adjudication and Review) office, and the ALJ at another ODAR office.  

The new plan is allow the claimant and their attorney to do the video hearing from their attorney’s office. So, instead of going to an unfamiliar location and endure the time and financial costs of travel, the claimant just goes to their attorney’s office and they do the video hearing there.  Of course, the attorney has to have the facilities (camera, speaker, microphones, video monitor, bandwidth) to perform the hearing.

Charles refers to a “press release issued by the National Executive Board of the Association of Administrative Law Judges (AALJ), a labor union that represents many of Social Security’s Administrative Law Judges (ALJs)” which raises concerns about this plan:

Judges would like to see steps taken to reduce the backlog and more quickly settle claims, however the use of video hearings originating from claimants´ lawyers laptops is not the solution. Claimants who have paid into the Social Security system throughout their working lives have a right to a fair hearing before a judge in a dignified setting. The new “laptop law” video forum has no provision for the judge to position or move the camera during the hearing. It deprives the judge of control of the hearing process and creates too many opportunities to game the system. It is not hard to imagine a claimant testifying from his lawyer´s office reading testimony from a teleprompter or being coached by another lawyer in the background.

I was about to reply to some of these concerns, but an anonymous commenter already beat me to it:

It would be fairly easy to tell if someone was reading testimony off of a teleprompter. Likewise the ALJ would likely be able to tell if a claimant was being coached by someone off-camera. These are two of the many reasons why attorneys would not bother to pull stunts like this while holding video hearings in their offices. Plus, if the judge is controlling the questioning, it would be way too much work to create a “script” for the claimant’s testimony AND work out a system to make sure the claimant reads the correct answers to the judge’s questions, all the while making sure to do all of this in such a way as to keep the ALJ from catching on. Oh, yeah, and there are rules of ethics/professional responsibility that require attorneys NOT do pull stunts like this.

I think Anonymous’ comments are right on the money.  

Also, if a lawyer is unethical enough to try to control the testimony, he will do so regardless of wether the hearing is in-person or remotely via video.  Any script than can be read off a teleprompter can be memorized and recited. Off-screen coaching can just as easily be turned into subtle cues (a pencil tap, an ear pull) given right in front of the judge during an in-person hearing.  

I am more concerned about a further reduction of video quality if video hearings move from ODAR offices to attorneys’ offices.

Hearings are largely credibility assessments. The ALJ already has the objective evidence. The judge wants to see the claimant.  See how they answer, see how they move, how they sit, see any physical discomfort.  

It is bad enough doing a hearing over a pixelated screen with a slight delay (which may be misinterpreted as hesitation or an attempt to formulate the “right” answer). Further reducing the quality of the telepresence just increases the risk of misreading facial responses or body language.

I want full and fair hearings for my clients too.  I am not worried about attorneys trying to manipulate the hearing.  I am concerned about the judge’s ability to adequately see and evaluate my client. 

Read Charles’ entire post here.

You are finally at your hearing.  The judge, wearing black robes, turns to you and asks:

“You last worked in 2003, right?”

It is the “Dirty Harry” moment.  

Was it 2003?  Maybe it was 2004?  Or 2005?  Well, if the judge thinks it was 2003, it must have been 2003.

“Yes, judge”

Bzzt!  Wrong answer!

Do not guess the answer to the judge’s question; and do not accept the what the judge tells you about your history if you do not remember the answer yourself.  

Why?

While the judge is not trying to suggest the wrong answer, the judge may be hearing between 7 - 14 cases that day.  There is a reasonable chance that the judge may get something wrong about the facts of your case.  If you accept the judge’s answer, and it is wrong, it may be very difficult to walk back your answer and still preserve your credibility.

It is fine to disagree with the judge if you know the suggested answer is wrong.  If you do not know, or if you cannot remember during the stress of the hearing, it is also perfectly acceptable to say, “I don’t remember.”  But, do not guess.  

Your lawyer should have a summary of all of the critical facts and dates in your case.  If the issue is important enough, your lawyer can jog your memory with leading questions or refer to exhibits in your file which answer the judge’s question.

Your hearing has finally been scheduled?  Wonderful!  What will you wear?

Does this seem an odd thing to ask?  After a ridiculously long wait, you finally get your chance to present your case to a judge.  There is a lot to think about:  Social Security’s standard of disability, the 5 step sequential evaluation process, answering the judge’s questions, dealing with a vocational expert.

So, why am I asking you to think about what you are going to wear?

Because wearing the wrong thing can be one of the worst mistakes you can make, and one of the easiest to remedy.   Here are some quick tips:

Do not wear your Sunday Best

I know this may seem counter intuitive; you are going to court after all.  But remember, the standard of disability requires showing that you not able to work.  If you dress up, you will look like you are ready to go straight to work.  There is nothing wrong with that if you are able to go straight to work, but in that case you should not be applying for Social Security benefits.

Hearings are all about first impressions.  Even though you may have waited years to see the judge, the hearing will only last 45, maybe 60 minutes.  In other words, you will not be there long enough to make a second impression.  If you look like you are able to work, you may not get the chance to correct that misimpression.  So all through the hearing, you may be explaining how your symptoms make your life miserable, but your clothes will be saying that you are just fine.  

You will provide better answers if you are comfortable

On the day of the hearing, you will be nervous and you may not feel your best.   You do not want to be in an outfit that makes it even more difficult to answer the judge’s questions.  You want to be able to as comfortable as you can be, so you are not distracted by tight, pinching, too warm or too cold clothes.

Dress comfortably, not in a costume

Like anything, this advice can be taken too far.  You are not trying prove your disability through your clothes.  I have seen claimants in sweaters and I have seen them in sweats.  Wear what you want.  Just be comfortable.

However,  I occasionally see cases scheduled as early as six months after the appeal is filed, and occasionally as late as 18 months after the appeal was filed.   Please note: having a hearing at the six-month mark is rare.

This is a long time, and for most people there is a real question of how they are going to make ends meet while waiting for their case to go in front of a  Administrative Law Judge (ALJ).

However, it is important to try to make the best use of this time:  

• Obtain treatment, 
• Develop documentation of conditions (including symptoms, severity, and response to treatment), and
• Develop medical opinions of your abilities and limitations.

When you add to the 12-18 months it normally takes for your case to go in front of a judge, with the 4-6 months it takes for Social Security to make the initial decision in your case, you are looking at anywhere from 16-24 months from the time you file your application to the time your case it goes in front of a judge.

Because it takes up to two years to get your case in front of a judge, it is important that your case is in as good a shape as possible.   Because if you are denied, and have to reapply, you may be looking at another two years before you get another chance in front of the judge.

Getting a Partly/Partially Favorable decision in a Social Security disability claim is confusing for a lot of people.  

First, lets go over what it does not mean.  Under the Social Security system, there is no partly or partially disabled. Either your impairments keep you from being able to work (and therefore disabled) or not. There is no half disabled. Disability determinations under the Social Security system are all or nothing.  Comment:  This is also one reason why it is so hard to get on Social Security.

So, the judge has to either find you disabled or not disabled.  However, even if the judge finds you disabled, the judge may not be able to give you everything you asked for.  In those cases, you get a partly favorable decision.

You may be saying, “huh?” Fair enough. Lets go through the most common examples of a partly favorable decision.

If you get a partly favorable decision, it usually means one of three things:

• Social Security disagrees with the date you became disabled.
• Social Security disagrees that your disability continues.
• Social Security disagrees with the beginning and/or ending dates of your disability.

Lets take them one at a time:

Social Security disagrees with the date you became disabled.

Lets say you claimed to be disabled as of December 2003. If you kept working (at a substantial gainful activity level - i.e. full time) after December 2003, or if the medical records do not support that you were disabled back to December 2003, the Judge may only be able to find you disabled as of a later date. This results in a partly favorable decision.

Social Security disagrees that your disability continues.

The judge may agree that you were disabled, but may not think that your disability continues. Using the prior example, the Judge agree that you were disabled in 2003, but that your condition improved to the point that you were able to return to full time employment as of June 2007. In this instance, the judge might grant you a closed period of disability, that is he may find that your disability period began in December 2003 and that your were no longer disabled as of June 2007. This also may result in a partly favorable decision.

Social Security disagrees with the beginning and/or ending dates of your disability.

This is the surf and turf combo of the prior two examples. The Judge may with either the date your disability began or may disagree with the ending date (if you were requesting a closed period of disability). Again, the result is a partly favorable decision.

A partly favorable decision is still a win!

But, you need to review the decision to see where the judge disagreed with you about your disability. Is the judge choosing a later disability onset date? Is the judge disagreeing that your disability continues and choosing an ending date for your disability? Or is there some combination of those options occurring.