Perhaps the most intimidating part of filing a claim for disability benefits is having to appear before an Administrative Law Judge for a hearing.
Dejected your claim was denied, you think "why bother– the judge will just agree with Social Security's decision to deny my claim?" In resignation, you believe it is better to withdraw your claim than appear before a judge. To be sure, these thoughts are valid and understandable.
Unfortunately, they're misplaced and not based on how disability hearings and judges actually work. A hearing is not as intimidating or fruitless as most people fear.
Indeed, most claimants will appear before a Social Security judge before their claim is approved. Historically, judges approve disability claims more often than they deny them! Put another way, judges agree with you more often than they agree with Social Security.
Throughout my career I have traveled the country and appeared before over 300 Social Security judges in over 40 states. More importantly, my firm wins disability cases at a very high rate regardless of whether the judge is in Las Vegas, Phoenix or Washington D.C. Thus, this article is based on experience and relevant regardless of what city you or the judge may reside.
Our experience is unique and has provided a broad understanding of how judges evaluate disability cases and conduct hearings.
In writing this article, I am assuming you are not represented by a disability attorney. If you are, I suggest consulting with them regarding what s/he believes you should do to prepare for a hearing.
What follows are several tips that will significantly increase your odds of winning your case, let me share them:
Tip #1: A Social Security disability hearing is generally non-adversarial and not intimidating
Most people believe the hearing will be an intimidating and scary event. This is not true.
The overwhelming majority of judges I have appeared before are independent minded, non-adversarial and interested in listening to the case. Yes, there are judges who are rude, unpleasant and cared less– but this is the exception, not the rule.
Hopefully, if you draw a difficult or conservative judge, your case will be so well documented the only reasonable conclusion any person could arrive at after reviewing the evidence is that you are disabled. Hearings are always tape recorded and you can appeal an unfavorable decision; the tape tends to keep judges in line.
I have consistently found judges to be cordial while giving my client's case the attention it deserves. So put your mind at ease and stop expecting a horrible experience at the hearing - because it rarely occurs. Remember, judges approve more disability claims than they deny.
Tip #2: Hire an attorney who concentrates on Social Security disability law to represent you at the hearing
After filing your Request for Hearing before an Administrative Law Judge, the next step should be to hire an experienced disability attorney to represent you. Why? Congressional statistics confirm that attorney representation significantly increases the odds of winning your case. Second, you only pay a fee if you win your case; you have nothing to lose.
You really should hire a disability attorney well before the hearing level and as soon as possible after you file your claim. Throughout your lifetime, the claim could be worth hundreds of thousands of dollars and Medicare health insurance benefits – why go it alone when you only pay a fee if you obtain benefits? If you can represent yourself before a judge – are you really disabled? Ask this question – do you know what you must prove to win your case?
The case development a knowledgeable disability attorney conducts to prepare a case for hearing is usually extensive and involves complex federal law. An unrepresented person who does no development places too much faith in the system and the judge. While judges are cordial – they have an obligation to be fair to all parties; common sense dictates not everyone is disabled so someone's case has to be denied - will it be yours?
Representing yourself is tantamount to hoping your claim will be approved. Under federal law, you have the obligation to prove you are disabled – Social Security will generally not prove your case for you. Indeed, if it had, your case would have already been approved.
Hire a disability attorney - don't be penny wise and pound foolish with your future.
Tip #3: Social Security Disability cases are usually won before the day of the hearing
The importance of hiring a disability attorney is evident in the fact that most disability case are won before the day of the hearing. Why? Success is very dependent on paper evidence: updated medical records, specific medical opinions regarding your ability to work from treating physicians, vocational issues, non-medical evidence and your credibility.
A seasoned disability attorney will successfully develop your case so the judge has the relevant paper evidence prior to your hearing. After review, the judge will form an impression of the strength of your claim. The hearing then is a time for the judge to listen to your story, make an assessment of your credibility and s/he does this by comparing the paper evidence to your testimony at the hearing. If the paper evidence is strong and the judge believes your story that you are unable to work, your claim will almost always be approved. If your story is different than the paper evidence or inconsistent you may have problem.
A seasoned disability attorney will review the evidence prior to the hearing to determine strengths and weaknesses. Understanding weaknesses in your case is critical to success at the hearing.
Tip #4: Prepare for questions the judge will usually ask at the hearing
The day of the hearing, I like to meet with a client an hour to an hour and a half prior to the hearing. This allows time to cover basic questions that will be asked and to address specific issues with the client's case. This preparation is analogous to having the test answers before the exam. The result is the client understands the hearing process, and can formulate answers that give maximum impact. Hearings usually last one hour.
I have clients dress in Saturday morning casual attire. A hearing is not a fashion show. The judge needs to see you on a bad day; because if you were working, every day would be a bad day. This means no makeup, no jewelry, no fingernail polish –the judge should see you have problems with daily care. Never exaggerate or present a false front – the goal is to appear as you would on a bad day.
Questions cover topics such as personal history, including if you have worked since you became disabled, work history, medical conditions that disable you and physical and psychological limitations which prevent work.
Discuss the frequency, severity and duration of specific symptoms, not just symptoms themselves.
Considerable time will be spent on what you are able to do with your medical conditions such as how long you can sit, stand and walk for at one time, the weight you can lift and carry and other physical capabilities. These questions should be answered as if you are having a bad day and back at work. In determining disability, Social Security wants to know the most you can do if you were back at work every day.
Judges usually never ask questions related to physical limitations in that manner. Judges simply ask "how long can you sit for at one time?" The proper question is "If you were working every day, how long can you sit for at one time?" I advise clients to answer as if they are back at work; the reason is they would clearly be capable of much less if they were back at work (please see Social Security Ruling 96-8p).
If relevant, discuss psychological issues such as memory/concentration problems, emotional instability, not wanting to be around other people or the public.
Remember to cover side effects from medications that limit or prevent work.
Prepare to discuss your typical day. You do not need to be bedridden 24/7 to win. There may be some days you are bedridden, but not all days. Judges will believe you are capable of household activity for short periods of time, but that you cannot sustain it.
Judges will usually find you credible if your paper evidence (i.e. medical records, doctors' opinions) confirms you have had consistent and compliant medical care and is consistent with your testimony.
Finally, testimony must be honest, don't avoid issues. If there are problems in your case, judges appreciate acknowledgment and candid explanation.
Remember, preparation and planning is the key to success, I wish you the best.
Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation. Call (602) 482-4300, 8:30 am to 5:30 pm, Mon. to Thu., or email: firstname.lastname@example.org. Visit his website at www.ScottDavisPC.com.
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