I was recently asked what it meant that the Administrative Law Judge did not have a Vocational Expert (VE) testify at an individual’s Social Security hearing.

What happens when the administrative law judge does not call the vocational expert to the hearing. Why would the judge do that?

Well, I can’t tell you “why” the judge didn’t have VE. Some judges use VEs all the time, others do not. A VE provides evidence (testimony) about steps 4 & 5 of the sequential evaluation process. 

That is, whether an individual can perform any past work (step 4) or any other type of work (step 5).

Keep in mind that the burden of proof shifts at step 5. At steps 1 through 4, the claimant has the entire burden of proving their case. If the claimant fails to provide sufficient evidence, Social Security can deny the case without lifting a finger (as it were).

However, if an individual get to step 5, *then* the burden shifts to the Commissioner of the Social Security Administration to prove that the individual can still work. From a legal standpoint, if the judge wants to deny an individual at step 5, it helps for the judge to have a VE to provide testimony. Otherwise, there is a potential appealable issue that the judge made a step 5 denial without supporting evidence.

Note: denying an individual at step 5 (being able to do other work) is not automatically appealable error. There are ways this kind of decision can be valid, eg applying the medical vocational guidelines, aka the Grids. The grids a describe various age groups (50 to 54, 55 to 59, 60 to 64) along with educational backgrounds and describe the maximum physical abilities that can still result in a disabled finding. Use of the grids in the decision process does not require a VE.

Why doesn’t a judge always have a VE? Perhaps the judge feels the case is a slam dunk and there is not need to have a VE present. Perhaps the judge feels the case had serious issues and could be resolved (either by an approval OR a denial).

I don’t want to tease you. However, I just can’t say why some judges do not have VEs. It’s asking me to read the tea leaves without even seeing the tea cup. However, I hope a brief discussion of the impact of not having a VE at the hearing was useful!

Good luck!

My friend, Maine disability lawyer, Gordon Gates, has put together a free e-book, 10 Steps To Prepare For Your Social Security Disability Hearing.

In it, you’ll learn:

• How Social Security reviews cases.
• What you can do while waiting for your hearing.
• How to expedite cases.
• The information you will need to have at your hearing.

Honestly, I don’t believe bringing a notebook to a hearing is helpful. Or, more specifically, I believe the negatives outweigh the positives.

If you bring notes, you won’t answer naturally. You will likely end up clutching and flipping through the notebook throughout the hearing.  You’ll know that that some answers are in your notes, but you will forget which ones. So, you will check your notebook before answering the judge’s questions. You will use your notes to avoid eye contact with the judge, and end up answering questions looking at the table and not making any human connection with the person who needs to decide your case.

For another reason, the answers are not there. If you bring a few key pieces of information, 95% of the judge’s questions will be unrelated to your notes. If you bring voluminous notes, you won’t be able to find the information you need in the pressure of a hearing setting.

Plus, skimming through a notebook at a hearing just doesn’t look natural. This is YOUR CASE. The judge will be asking you about YOUR DISABILITY. How do you think it looks to the judge when s/he asks where do you feel pain, and you have to check your notes before answering?

Keep in mind that much of the factual information is already in the file in front of the judge: where you worked, your medical providers, and, of course, your medical records. If the judge asks you about any of this, the s/he may be asking for clarification, but the information is likely already in the file.

This is another reason to have an attorney with you at your hearing. The attorney has the same information as the judge and can help locate where things reside in the file. The attorney can also provide information and can help you remember things in case you forget or get things wrong.

You should also know that judges don’t expect you to remember everything. They may expect you to know the big things. But not the minutiae of things that happened years ago. Also, judge’s know that people are nervous during hearings and a likely to forget things.

The best thing you can do during the hearing is to just be yourself. Answer the best you can. However if you do not know an answer, just say you do not know, or that you can’t remember. Your lawyer can help you fill in the details if you falter.

People are naturally nervous at their hearing. However, a notebook only acts as a crutch. The only exception concerns bringing a list of your current medications (if you did not fill out a form for Social Security shortly before the hearing). However, do not take it out unless you are answering about medications. And then put it away once you are done. Otherwise, you may end up staring a single piece of paper, looking for answers that are not there.

photo credit: Markus Rödder

The vocational expert at a Social Security hearing may testify that there is an, “erosion in the job base.” I have had a number of people ask me what this means?

As I wrote about before, the vocational expert’s job is to testify about the availability of different jobs in the national economy. The vocational expert responds to be Administrative Law Judge’s (ALJ’s) hypothetical questions about the effect of limitations on an individual’s ability to perform job duties.

In other words, the vocational expert testifies about what jobs (if any) a person can still do despite their limitations.

However, not every job is performed the same way, and, jobs can be performed differently (with different abilities and limitations) in different industries.

Example 1: cashier. Working as a cashier typically requires an individual to stand for the entire shift. However, some hospital cafeteria cashiers can sit while working as a cashier. So, a vocational expert may testify that an individual as follows:

An individual with those limitations still has the capacity of working as a cashier, with a 65% erosion in the job base.

In other words, 65% of cashier jobs (note: this is a number out of the air) requires standing, but 35% of cashier jobs allow an individual to work while sitting down (cashiers in hospital cafeterias).

Example 2: parking lot attendant. This is a job where a person provides tickets and takes payments at a parking lot. Since this job requires an individual to be at the parking lot during the blazing heat of summer and the biting cold of winter, this position is often eliminated if an individual has limitations on exposure to temperature extremes.

However, some parking lots have been enclosed booths with temperature controls (air-conditioning and heating) which might allow an individual to perform the duties of a parking lot attendant even they cannot be in temperature extremes. This would result in an erosion in the number of parking lot attendant jobs the individual would be able to work at, but a percentage of parking lot attendant positions would remain.

• An erosion does not mean that an individual will be found disabled. In order to win an adult Social Security facility case, an individual has to show that that there is not a substantial number of jobs the he or she can perform.
• If the erosion is particularly high, and the actual number of available jobs is very small, the erosion might mean that Social Security would approve the claim. However, that is not guaranteed.

It all depends on he final number of jobs still available that the individual can still perform.

CC photo credit: nateOne

Disability cases based on seizure disorders are a very special kind of disability case.

If your case goes in front of an Administrative Law Judge, you can expect to be asked these questions:

• How often do you have seizures?
• What happens during a seizure?
• How do you feel after a seizure?  
• What do you have to do after a seizure (lie down, sleep etc)? And for how long?
• Are you treating with a doctor?
• Are you taking your medications as prescribed? How long have you been taking your medications?

While seizure disorders (epilepsy, partial complex seizures, etc.) are often disabling, simply having a seizure disorder is not enough to be found disabled. In many cases, medications control the frequency or severity of seizures.

Of course, in many cases, they do not. 

But, to improve your chances of winning your case, you have to be ready to talk about your seizures, how often they happen and how they effect you.

It surprises my clients to learn that, most of the time, Social Security does not update medical records after the initial denial.

With wait times of a year or more, this can mean that by the time your case gets in front of a judge, the records in your file may be a year (or more) old, and your recent treatment may not be in the file at all.

This is not the way the system is supposed to work.

When you appeal the initial denial, you provide a list of your current doctors, dates of treatment, tests performed, and medications as part of the appeal.  You also provide an authorization letting Social Security get updated records. Your appeal will be rejected if you do not do this.

There are also regulation instructing Judges to assist un-represented claimants (people applying for Social Security) with obtaining relevant evidence in their case.

BUT, when I get a call from someone whose hearing has just been set, or continued, I often see that NONE of the records have been updated since the denial.

Think about the waiting times in your area.  In Colorado, the typical wait is a bit over a year (although the times in the Pueblo area are sometimes over 2 years). Do you want a Judge deciding your case with out-of-date records?

This is why you need to review your file early to figure out just what records Social Security has, what records are incomplete, and what records are just plain missing. That means you have to know how to review your file.

Personally, I encourage you to work with an attorney to make sure the necessary records are in your file. However, if you decide to brave this process alone, make sure you know what is in your file and keep it up to date!

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!

I previously wrote about how Social Security may move a case from one hearing office (Office of Disability Adjudication and Review – ODAR) to another to try to ease case congestion and speed up processing.

Usually, there is nothing to worry about when this happens. However, there is something you do need to watch out for. If you are not careful, you could delay the decision in your case, or even reduce your chances of winning.

If your case is transferred to a different hearing office, be sure that you are submitting evidence to the right ODAR office. If you send records to the wrong office, your evidence may not get into the file. This means the judge may miss critical evidence that could make all the difference in your case.  

How to make sure the evidence gets into your file

Social Security is moving to completely digital files. The days of simply mailing records to the right ODAR office are nearly over. In most cases, Social Security requires electronic submission of records.

If you are working with an attorney, he or she can submit records using Social Security’s Electronic Records Express (ERE) service.

If you do not have a lawyer, you can either fax in your records and other evidence, or send your records to a Social Security scanning center to be processed and entered into your file. Either way, you need to add a cover sheet with a Social Security bar code with each submission of evidence. 

Social Security uses the bar code not only to identify your case, but also identify your file so the evidence goes to the right place.

If your case is transferred, you may need to obtain a new bar code to make sure your evidence gets into your file at the new ODAR office. 

How do you get an updated bar code?

Just ask.

If your file is transferred to a different ODAR office, you will receive a notice letting you know this has happened with the new office’s address and phone number. You should also get a new bar code automatically from that hearing office as well.  If you do not get a new bar code, or if you lose it, you can call the new ODAR office and request a replacement.

What if I lost the notice.  How do I find out which office has my file?

If you don’t know which office has your file, just call your local Social Security office or the Social Security 800 number (1-800-772-1213).  

TIP: You may get more up to date information from your local Social Security office.  Several of my clients have gotten quite a scare when they called the 800 number to check the status of their case, only to be told (mistakenly) that there was no appeal on their case. Fortunately, a call to the local office helped clear up the confusion.

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.

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!

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 hearings are not negotiations; hearings are 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, see 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. However, 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 noted earlier 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.  However, a skilled attorney will help the Judge find the evidence necessary to put your claim in the best light.

The second part of Gordon Gates’ article on whether you can receive Social Security disability benefits while incarcerated, talks about hearings in prison.  

The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant. Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.

I have done hearings in prisons and I agree with his concerns.  

It is much harder to prove a case for someone who is incarcerated.

• You do not get to see your own doctor.
• You can wait weeks or months to get medical care.
• You may not get the medical care you need.
• Medical providers may doubt that you have a particular condition or its severity even if the condition was well documented before the incarceration.
• Just documenting the impairment can be next to impossible in some cases.

If you are close to your release date, it can be useful to try request a continuance until you are out and can see your own doctor.  Also, if there is a question about the severity of your medical condition, Social Security may want to send you for a consultative examination – which also requires you to be out of jail or prison.  

If you cannot continue your case, don’t worry about it. Just because you have your hearing while incarcerated does not mean you wont win.  Just put on the best case you can.  

May an Incarcerated Felon Receive Social Security Disability Benefits?.

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 about.

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.

Can the judge deny me for being able to do jobs that don’t exist in my town?

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, cashier, stocker, etc.
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.  

How many jobs make up a “significant number of jobs?”

That is hard to say. There is a rule of thumb that 1,000 jobs (not job titles) within a region is a significant number of jobs and enough to deny you. However, there is no bright line rule about how many jobs are a “significant number.”

If the Vocational Expert says that you can still work as an “Information Clerk” and there are 30,000 Information Clerk positions nationally, and 1,200 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 availability of jobs in your town, so long as they exist in your “region.” Not only that, 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 any of the cited jobs. 

It is quite possible to be denied because you are theoretically capable 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 assisting you.

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?

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!