How To Present The Best Evidence At Your Social Security Hearing – Part 4

If you were unsuccessful in your request for reconsideration, you will need to request for a hearing before a Law Judge. In a previous post we told you how to request a hearing and how to prepare for a hearing by securing the best medical evidence. In this post we will tell you what to expect at the hearing and how you can best present evidence to a Law Judge.

Basic Procedure for a Hearing

Your hearing may be held in person, via videoconference over a computer, or by telephone. Due to the COVID-19 outbreak and resulting state of emergency, in-person hearings have been suspended, but eventually we do anticipate in-person hearings will return. When a hearing is held “in-person” this simply means that you will physically be in the social security office, but the Law Judge may not appear in the same room. Your hearing may be held with the Law Judge physically present in a different location and appearing on a television screen in your hearing room. Some locations are set up for teleconferencing where your hearing would occur over the computer in your attorney’s office. Right now, all other hearings are occurring via telephone.

Regardless of how your hearing occurs, the Law Judge will have access to any medical records and forms submitted in an electronic data base. If you bring any medical records to the hearing, the Law Judge may not consider such evidence unless there is a reason why it was not submitted prior to the hearing. If the judge is in the room with you, the Law Judge may accept and consider the evidence. If the Law Judge is not in the room with you, the judge may ask that you submit the evidence after the hearing has concluded.

You will be allowed to make an opening statement either on your own or through your attorney. Often an attorney will submit a pre-hearing brief instead of making an opening statement. If you are represented, the Law Judge will often have your attorney take testimony and ask you questions that are relevant to your claim. If you are unrepresented, the judge will take your testimony. It is likely that the Law Judge will review your medical records prior to the hearing, but the judge may have questions for you regarding your symptoms and limitations. The judge does not expect you to be a medical expert, but you should be familiar with your diagnoses, what treatment you have received, what doctors you have seen, and what medications you are taking. The Law Judge will also ask you questions about your educational and vocational background. The Judge will have access to your social security earnings record and will be asked to explain any prior employment worked in the last 15 years.

You are permitted to call witnesses who can assist in your claim as well, but you should notify the SSA before the hearing if you intend to call a witness. You should select a reliable individual who will not exaggerate or make inconsistent statements. This person should have direct information about your condition and your inability/limited ability to work. This person can be a friend, family member, past employer, caretaker, social worker or any other individual who has direct knowledge of you and your situation.

Following your testimony and the testimony of any witnesses, the Law Judge may ask for the opinion of a vocational specialist. This specialist will listen to your testimony and may ask you additional questions so they fully understand your past employment history. The vocational specialist will then issue opinions about your ability to return to work. The vocational expert will testify as to the current labor market and skills that are required to perform certain jobs. The vocational expert can offer an opinion as to whether you have skills that can be transferred to other employment or if your work restrictions would prevent you from being employable. Either you, or your attorney have the right to cross-examine the vocational expert should they offer an opinion that runs contrary to your claim for benefits.

While a Law Judge can render a decision at the hearing, this does not often happen. Usually a Law Judge will close the record and you will leave the hearing without knowing whether you were successful. The Law Judge will thereafter render a written decision, which will be mailed to you and your attorney if you are represented. The Law Judge can grant your application in whole meaning you will receive a period of retroactive benefits and ongoing awards. The Law Judge can grant your application in part meaning they disagreed with your alleged date of onset or they believe you are only entitled to a closed period of awards and no ongoing benefits. The Law Judge can deny your application and find you are not disabled and therefore not entitled to any retroactive or ongoing awards. If the Law Judge either grants your application in part or denies the application for benefits, you will be notified of the appeal process should you desire to appeal to the next level.

• Make sure the medical record is complete. At this stage, it is more important than ever to make sure your medical record is complete. When you initially apply for disability, the SSA informs you that they will attempt to obtain your medical records. However, it is highly unlikely they will be able to obtain any and all medical records that are relevant. You, or your attorney, must ensure that all medical evidence is submitted that help outline the severity of your medical conditions and limitations you may have. This is also the time to ensure your doctor has supplied any extra information you or your attorney has requested in the form of Medical Source Statements that will outline your ability to work and any work restrictions you may have.
• Prepare notes for yourself. You are permitted to take notes or copies of medical records into the hearing room in order to refresh your memory. Make sure to disclose to the judge that you have notes you may need to reference during your testimony. You should sit down in the weeks or days before a hearing and make a timeline for yourself about when you were diagnosed with different conditions, when you underwent important tests or surgeries, when you stopped working, and details about your past employers. It is always more helpful for a claimant to say when they had a surgery or when they had a diagnostic test done than rely on the Law Judge to look through a voluminous record to try and find important dates. Being more organized with written notes will also help ease anxiety because you can ensure all relevant information is given during your testimony. The Law Judge will ask you at the end of the hearing if there is anything else you want to say. This is your time to review your notes and make sure all relevant information has been given, or to make a last closing statement on your own behalf.
• Make a plan. If you are attending an in-person hearing, you need to make sure you know where you are going, how you will get there if you need transportation, where to park, how long it will take you to get there, and where your hearing is located within the building. If you have difficulty finding parking and are not present at the time the hearing is scheduled to start, the Law Judge may move on to the next hearing and you will have missed your chance to testify. Plan to arrive early so you have plenty of time to find the hearing room and relax before you are called in to testify. This will help calm your nerves and give you the time to look over your written notes. If you are represented, you should plan to arrive early if you have any additional questions to ask before the hearing begins.

WORKING WITH A DISABILITY ATTORNEY

Working with an attorney can increase your chances of being successful at every level, but especially during a hearing. According to a Martindale-Nolo’s 2017 study, approximately 60% of represented claimants were ultimately approved for benefits whereas only 34% of unrepresented claimants were approved . Your attorney can ensure that the Law Judge has all of the medical reports from your treating provider and summarize your disability and legal standards in a “brief” for review by the Law Judge. In advance of the hearing your attorney can prepare you for testimony by informing you of the questions you will likely be asked so you can determine ahead of time how to best answer those questions. An attorney can cross-examine a vocational expert that offers testimony that could hurt your claim for benefits.

The disability attorneys at Hinman, Howard & Kattell are available to assist you with your disability claim regardless of where you are in the process. Our attorneys are available to represent clients throughout New York State and in surrounding areas. Please call our office at (607) 231-6708 or submit a contact request on our website for a free consultation.

Copyright © 2020 by Hinman, Howard & Kattell LLP. This Client Alert is provided as a general information service to clients and friends of Hinman, Howard & Kattell, LLP. It should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. Please contact our firm for advice specific to your situation. These materials may be considered Attorney Advertising in some states.