The “Social Security Hot Topics” Continuing Legal Education (CLE) program provided quite a bit of information about the state of Social Security.

More judges on the way:

• 150 new judges already hired in 2009.
• 20-30 additional judges to be hired before end of 2009
• ~200 more judges to be hired in 2010.

Applications on the rise:

With the poor economy, more people are filing for disability benefits. There has been approximately a 25% increase in new claims filed in 2009.

Psychological problems loom large in disability cases:

35-40% of disability cases involve mental limitations.

New National Hearing Centers (NHC) coming online:

National Hearing Centers handle video hearings only, and can hear cases from around the country to try to reduce backlog. As previously noted, the Falls Church Virginia, and Albuquerque New Mexico hearing centers are already up and running.

Another NHC in Chicago is set to open in 2009, with a fourth center to open in Maryland in 2010.

Even though it often takes a year or even two years to get your Social Security hearing, you may find that you are not ready when the big day finally comes.

Is there any way to continue, postpone, or delay my Social Security hearing?

Yes. You can request a continuance to postpone your hearing.

Lets look at how to do this.

Fortunately, there is no formal motion that has to be submitted to request a continuance. In my office, I usually send the judge a letter explaining my reasons for requesting the continuance.  

Then I follow up with the judge’s clerk to see if the motion has been granted or denied, by calling the Office of Disability Adjudication and Review (the Notice of Hearing lists the phone number to use) and asking to speak to the judge’s “pre-hearing” clerk.

Common reasons for a continuance include:

1. You are sick or hospitalized.  This normally means physical illness, but it could include psychological problems such as not being able to interact with anyone that day.  However, it might be best for your case for the judge to see you on a bad day.
2. A close family member is sick, hospitalized, or has recently died.
3. You are looking for a lawyer.
4. You just hired a lawyer and your attorney needs time to review the file.  Note:  if you have a lawyer, the attorney will normally make this request.  
5. You have an upcoming medical test scheduled that is expected to shed light on your disability.  Note: it is best if the test is actually scheduled; not that you merely hope that you might somehow be able to get some kind of test done. 
6. You will be out of town or out of the state on the hearing date.
7. You are in school and the hearing is during or just before finals.
8. You are or will be incarcerated during the hearing.  Note: if you are or will be in prison, Social Security may move your case to a prison docket. Many appeals offices have at least one judge who travels between the prisons to hold hearings there.  As discussed before, you cannot receive Social Security benefits while incarcerated for a felony, BUT Social Security may hold a hearing in prison to address your eligibility for benefits for the time before you were incarcerated or to address eligibility for spouses or children of incarcerated individuals.

This is by no means a complete list.  Any good reason why the hearing should be continued will be considered by Social Security.  

However, keep in mind, requesting a continuance does not mean you will be granted a continuance. 

Are there bad reasons to request a continuance?

Sure.  While I won’t say that Social Security will never approve one of these reasons, I think the chances of success are pretty low:

1. You don’t want to go.  You can request that Social Security simply make a decision on the evidence in your file.  However, this usually does not produce the best results. 
2. You have already had 2 or more continuances.  If a Judge has already postponed your case even one time before, the judge may be unwilling to grant you another continuance without a darn good explanation of why you need another one. 

What were your experiences requesting a continuance? Tell me in the comments!

If you are keeping in touch with the Office of Disability Adjudication and Review (ODAR) which is preparing your case for hearing, you may be told that your case has finally been assigned to an Administrative Law Judge (ALJ).  

However, ODAR may not tell you is how much longer it will take to get a hearing date, now that your case has been assigned to a Judge.  So, how long after your case is assigned to a judge will it take to get a hearing?

I normally estimate that a hearing will be scheduled between 60 to 90 days after a Judge has been assigned to a case.

By the time a case has been assigned to a Judge, the case file, which includes all the records and other evidence Social Security will use in deciding your case, has been “worked up” by ODAR staff.  The file has been organized, duplicate records removed, and things have generally been cleaned up for the Judge’s review. 

Keep in mind that finding time on the docket for your hearing may increase or decrease your wait time.

• If the Judge has an opening due to a cancellation, your case might be put into that spot, resulting in a quicker hearing.
• If the Judge’s docket is full, your hearing may be pushed back until the next set of open hearing times.  This may be several months away. 

What was your experience with getting a hearing after your case was assigned to a judge? Tell me in the comments!

Gordon Gates writes about how he tries to make each case different and memorable when preparing to go to hearing.

I am always concerned that a particular claim will not get the attention it deserves at the hearing level, due to the tremendous workload at the Social Security hearing offices. Each administrative law judge decides several hundred claims every year.

…

I have an upcoming hearing with a client who has an unusual story. The medical evidence is very good, and the claim should be granted at hearing. Nevertheless, I am spending a great deal of time on the claimant’s story…, because it is so unusual. That story will be the hook that draws the judge into the case.

I agree completely!

In my office, I regularly meet with my clients and listen to their stories.  Every once in a while I hear something that rings a bell.  My eyebrows jump, and I make sure to write down that story in my notes.

Every individual applying for Social Security has had unique experiences related to their disability. It does not have to be anything big.  I am not talking about a trip to the ICU.

I am talking about uniquely personal experiences that highlight an individual’s disability.  

As I have written before, Social Security hearings are mostly credibility assessments.  Can the Administrative Law Judge (ALJ) believe what you tell him/her about how much your condition affects you. These unique stories can make your case memorable to the ALJ, and can make a big difference in the outcome of your case. 

This is another reason why it is important to work directly with a skilled attorney.  A good lawyer can help you identify the stories that can make a difference in your case.  

It also means if you have a lawyer, but you are just meeting with the legal assistant; the lawyer, the one person you are counting on to convey your case effectively at your hearing, may not know the story that could win your case. 

Click here to read Gordon’s article: Differentiate your Social Security claim.

What was your experience with a lawyer at your Social Security hearing?  Tell me in the comments!

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 with 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 are 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.  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 if we don’t win.

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 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 overcome 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 obtain 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 they are feeling.  Often the conversations go like this:

You just told be about your migraines. Have you talked to your doctor? Why not bring it up at the next visit.

-or- 

I am sorry to hear 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 whether 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 hearings 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 hearings more bureaucratic?

It reminds me 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 your Social Security disability, 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 judge.

via Social Security database – The Oregonian.

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 them.

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

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 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? 

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.

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 let 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.  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.

Under Social Security regulations, it is not enough to have a disability (a diagnosed medical condition). Your condition has 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.

Typically, the Judge will ask vocational expert 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 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?

If you are denied at your Social Security hearing by the Administrative Law Judge (ALJ), you have the right to appeal the judge’s decision to the Social Security Appeals Council.  

To do this, you need to file form HA-520-U5 “Request for Review of Hearing Decision/Order.”  You only have 60 + 5 days to get the appeal to the Appeals Council from the date stamped on the judge’s decision (5 days to receive the decision and 60 days to deliver the appeal).  

Note:  The appeal must be delivered by the 65th day!  Unlike filing your taxes, postmarking the letter on the 65th day is not enough.  The appeal must be in the Appeal Council’s hands no later than the last day. 

There is the possibility of filing late with the Appeal Council’s permission, but that is not something you want to count on.  

Here are a couple of things to keep in mind about the appeal.

1. The Appeals Council will not hold a hearing on the appeal.  The Appeals Council only does a “paper review” of the file.  
2. This means you must provide all your reasons for appealing and everything you disagree about the ALJ’s decision as early as possible; preferably along with the appeal.
3. Because the appeal form does not provide a lot of room to explain what you disagree with, attorneys often add a supplemental brief.
4. The Appeals Council mostly looks for legal arguments:  did the judge misapply the law?  While you can argue that the “facts” in the decision were incorrect (in legal terms:  that the judge’s findings were not supported by substantial evidence), the Appeals Council is mostly interested in whether the proper process was followed.  Because the Appeals Council is much more legalistic than the earlier appeals, you really should have an attorney helping you. 
5. The Appeals Council usually will not upset a judge’s factual determinations – even if they would have come to different determinations themselves – if there is a basis for the judge’s findings.  This is a critical point. The Appeals Council does not want to step into the judge’s shoes about findings of fact if they can help it. However, if there is a significant factual error which is not supported by substantial evidence, I will include it in my arguments. 
6. If you think the ALJ misquoted the testimony, or if you want to review the hearing tape for other reasons, you can request a copy of the hearing record. I previously wrote about this here.

Practice tip:  When I request the hearing tape, I file the appeal form with a cover letter requesting the hearing tape AND 30 days after the recording is sent to me to provide a supplemental argument based on the tape.  Note: the Appeals Council usually grants a shorter amount of time, but it is still useful to ask for 30 days.

If possible, do not wait until you are denied at hearing to hire an attorney. Many attorneys will not take a case if they hired after the hearing because there is very little time to review the hearing decision, become familiar with the evidence, and prepare a legal argument for the Appeals Council.  

It is much better to get an attorney before the hearing. If the case needs to be appealed to the Appeals Council, that attorney is already up to speed on the case.

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 asks 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, 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.  

What was the best hearing advice you have?  Tell me in the comments!

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, 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.  

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

“You last worked in 2003, right?”

It’s the “Dirty Harry” moment! You try to remember.  

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

“Yes, judge. I last worked in 2003.”

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.

However,  I occasionally see cases scheduled as early as six months after the appeal (this is pretty rare), and sometimes as late as 18 months.

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

Because it often takes 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 with a judge.

I enjoyed attorney Gordon Gates‘ article about knowing who your judge is in your Social Security case:

The first thing I want to know when I receive a hearing notice for a Social Security disability claim is the name of the administrative law judge (ALJ) who will hear the case and decide the claim. It probably shouldn’t matter which judge hears your case, since they all interpret the same rules and would be looking at the same facts. But it really does matter. Each judge approaches a claim a little bit differently, and it is very helpful to know how a particular judge tends to look at a case. Also, each judge conducts the hearing in a particular way, so I prepare for the hearing in a way tailored to the ALJ who will hear the case.

I could not agree more!  When someone contacts me with a hearing already set,  I ask who the judge is on their case.

 Here are some examples of how judges differ:f

• Most judges have certain pet peeves.   Knowing them, and more importantly,  knowing what to avoid doing during a hearing can make quite a bit of difference!
• Some judges will accept certain evidence, while others will not.
• Some judges will allow you additional time after the hearing to provide missing evidence, others will not.
• Some judges are extremely well versed with the evidence in a case, while others depend on you, or your attorney, to not only know the facts, but also to be able to cite to the exact page where the evidence appears in the exhibit file.
• Also, there is a wide range of what judges will consider to be “sufficient evidence” to find a person disabled.

Knowing your judge may give you a critical advantage in your case. As Gordon says, “it is important, in my opinion, to obtain the assistance of a Social Security disability lawyer whose experience with the judges in your area.”

The Social Security Disability Blog got me thinking about some of the questions I have heard Judges ask at hearings.

It is fairly common to be asked the following questions during a Social Security hearing:

• How long can you sit?
• How long can you stand?
• How far can you walk?
• How much can you carry?

Be careful, your answers might get you into hot water.

People want to answer by telling the Judge the most they can do:

Well, I can walk for about half a mile.

The problem is that the Judge is trying to determine your “residual functional capacity” (RFC): what you can still do despite your impairments in a work like environment. That is, what you are still able to do during an 8 hour day, five days a week (or a similar schedule).

While you may be telling the Judge that you can walk half a mile on a really good day (which only happens once or twice a week), the Judge may think you are saying that you can walk half a mile, several times a day, every day!

Even if an answer does not go completely right, it is not the end of the world. Your attorney can help you walk it back and get the correct information in front of the Judge.

Q: You told the Judge you can walk about half a mile?

A: Yes, that’s right.

Q: Would you be able to walk half a mile several times a day.

A: No.

Q: Would you be able to walk half a mile once a day, every day, Monday through Friday?

A: No, I can maybe walk half a mile on my good days — maybe twice a week.

Q: How far can you walk on your bad days?

A: Maybe from the bedroom to my couch.

Whether you are going to your hearing with an attorney or on your own, keep in mind that the unspoken part of the Judge’s “how long can you…” question, is “on a regular basis, day in and day out.”