Social Security Hearings – What Happens?
What Happens at a Social Security Disability Hearing?
If you have been reading this blog about the Social Security disability claim evaluation process, you are no doubt reading a lot about disability hearings. Since Social Security hearings are closed to the public, you most likely have never seen one or know what to expect. While individual judges conduct hearings slightly differently, there are some common features. Here is what you need to know:
Social Security hearings are not like State Court Hearings
If you have ever been to a state or superior court, or even traffic court, you know that courtrooms can be very active places. Attorneys may be milling around, witnesses and spectators are seated in pews, armed bailiffs are there to keep order, there may be a jury box, and these courts are open to the public – except in very limited circumstances, anyone can come to court and watch a trial.
You will not see any of these things in a Social Security disability hearing. Firstly, Social Security hearings are not open to the public. Only the claimant, his attorney and possibly one or two witnesses will be allowed in. Social Security hearings are administrative in nature rather than judicial. As such, the rules that apply in state court do not apply to the Social Security Administration.
The Rules of Evidence are Relaxed
In a state court, judges spend a lot of their time making decisions about the admissability of evidence. For example, you may have seen criminal trials where certain physical evidence was not admitted because there was some question about the chain of possession or possible tainting of the evidence.
These evidentiary issues usually do not apply in Social Security cases. Administrative Law Judges typically allow in any evidence that you or your attorney may wish to submit. This includes photocopies, letters from witnesses, and hearsay – none of which would be allowed in state court.
Only One Lawyer is Present – Yours
State or federal court proceedings are adversarial – typically each side to an issue (plantiff and defendant) each have counsel and the two lawyers each present arguments in support of their clients. In a Social Security hearing, you, as the claimant can come with your lawyer, but the Social Security Administration does not send counsel. Basically you and your lawyer present your case to the judge and the judge acts as both the fact-finder as well as a questioner. Most of the questions that you will be asked come from the judge.
The Physical Setup – What Does a Social Security Court look like?
Social Security hearings are usually held in small courtrooms not much bigger than a typical lawyer’s office. The judge will be present on a slightly raised bench and he may or may not be wearing a judicial robe. A hearing reporter will be present to operate recording equipment. The microphones you see at the witness tables are tied to this recording equipment. You and your lawyer will be seated around a large conference table. You may be asked to stand to swear to tell the truth, but otherwise, you will not be asked sit any any special chair.
In addition to you, your lawyer, the judge and the hearing assistant, there may be other witnesses present. Frequently the judge will request the presence of a vocational expert witness (also called a “VE”) to testify about your past work and to answer hypothetical questions about work you might be able to do given certain limitations.
In some cases, the judge may also call a medical expert witness (also called an “ME”). The ME is typically but not always a retired physician who will assist the judge by summarizing the medical record.
You may find it odd that one or two witnesses who you don’t know may end up testifying at your hearing, but this is how the system works.
How Long Does a Social Security Hearing Last?
Most Social Security hearings last around 45 minutes to an hour. Usually, the judge begins the hearing by introducing himself and any witnesses present. He will then confirm with your lawyer that there are no objections to the evidence and that the issues in the case have been discussed with you. The judge may or may not ask your attorney for an opening statement.
Some judges then turn to the claimant and ask questions. Other judges turn to the claimant’s lawyer and have the attorney ask questions. Be aware that the judge can interrupt at any point to ask you questions or to clarify something that has been said.
After taking testimony from you and/or your witnesses, the judge will turn to the medical and/or vocational witnesses for their testimony. The ME testimony usually relates to medical diagnoses and the ME’s opinion about the seriousness of your condition and the legitimacy of your complaints as related to the diagnosis.
The VE testimony is very important. The judge will use the VE to “translate” the judge’s conclusions about your specific work limitations into a vocational profile. The judge does this by formulating a series of hypothetical questions for the VE in which he attempts to identify any capacity you might have for performing work.
Ultimately, your hope will be that the vocational witness will conclude that there are no jobs that exist in the national economy for a person with your limitations.
Does the Judge issue a Decision at the Hearing?
Usually not. As noted above, there is no baliff or security officer in the courtroom during your hearing. Judges therefore do not always tell you how they are going to rule. More recently, I have noticed that some judges are announcing favorable decision, but not always. Do not be surprised if the judge says nothing about how he plans to rule.
Jonathan Ginsberg
Comments on Social Security Hearings – What Happens? »
MY FATHER JUST HAD COURT YESTERDAY AND THE JUDGE PRESIDING RULED IN HIS FAVOR, BUT STATED THAT HE WOULD ONLY CONSIDER HIS DISABILTY FROM 2006 & PRESENT. I DON'T THINK HE WAS ABLE TO REVIEW ALL THE DOCUMENTS IN FACT A LETTER FROM THE DOCTOR WHO REFUSED TO OPERATE MY FATHER SINCE 1999. WHAT CAN WE DO TO HAVE THE JUDGE CONSIDER HIS DISABILITY FROM 1999 THROUGH 2008.
I read that the hearings usually favor the applicant upwards of 60%+- of the time, is this true?
At my hearing two weeks ago the judge seemed to spend more time asking the VE questions than he did me…My situation is aggravated by the idea that I am self employed….According to the VE, the opinion was I was to be considered completely diasabled with no other type of work available to me based on my job history…I left the courtroom without a ruling and felt rather good intially but now I am having some doubt about the whole experience…Do the judges really listen to what is said by the VE? My being self emplyed didn't seem to bother the judge…He seemed more interested in knowing how much work would I miss in a typical month and whether it would be enough for me to maintain a standard mainstream job….The VE told the judge I would miss over three days a month and that considering such no one would employ me long term….At the moment I am in left field wondering what will happen…I am five years into this process and it needs to come to an end soon…My big question now is how long am I truly going to have to wait to get news of the judges decision…My attorney said he felt good about how it went and said if we lost on this go round he felt sure we could win on appeal….Then he said an appeal could take over a year…After five years I don't have a lot of time left to find out if I am going to sink or be able to swim here…Without a decision in my favor here I will end up losing my home long before an appeal happens…Any thoughts? Suggestions? Thanks, Kennect
Kennect, my experience has been that if the VE testifies that you would not be able to sustain work at a job because of too many absences, that is a good sign. The VE is there to answer questions from the judge. The judge creates a profile of your capacity for work then asks the VE if he can identify any jobs given that profile. Take a look at this case study from my Georgia Social Security disability web site: http://tinyurl.com/5fjymx. This is from a hearing I tried a few days ago where I wrote down the judge's questions. The VE is not there to help you or hurt you – it all boils down to the questions that the judge asks.
Jonathan
Jonathan, Thanks for that response and the link…I happen to be in Georgia just by chance in regards to what you mentioned above…The one thing that I find rather funny, I have to find some humor here somewhere, is the idea that I was turned down for a depression study at Emory University earlier this year…The doctor in charge of the program felt I needed more help than what the study would offer…Much to my suprise was the fact that my attorney had gotten paperwork from him to present at my hearing…I had no clue that was going to happen…While the doctor spent over an hour with me discussing his feelings that I was dealing with depression, agoarophobia and GAD the only thing he mentioned in the paperwork presented was GAD…How does SSD look at GAD? Is it considered as something serious or simply dimissed as something kooky that anyone could claim? Any thoughts or comments would be appreciated. Thanks, Kennect
Jon,
This post is similar to my disability case. I have severe, chronic pain in my neck, back, and tailbone. While I have multiple medical problems the pain is what is keeping from being able to "function". I have two functional capacity forms completed, one physical, that describes in detail the physical medical conditions I have, and the other is a mental health FCE completed by my psychiatrist, describing the cognitive disorder/major depression from traumatic brain injuries/cerebral aneurysm in the past.
Last week I received notification from Social Security, Office of Disability that was written to my attorney. In it asks for medical records that are up to date. It stated that if possible my case can be decided fully favorable without a hearing. (Which I think is possible).There is enough evidence in my opinion, but as I read this fibromyalgia case post, it makes me wonder if there is.
I am trying to let my attorney handle everything and have submitted ongoing medical records as I see different doctors. In the back of my mind I am worried that even though I think there is ample evidence I am worried that I will end up waiting even longer and then find out they denied benefits. Both of my doctors have signed a form stating that I am totally and permanently disabled and we have submitted them as well. Do you have any suggestions or do you think I should not worry and see how it all turns out? Thank you in advance.
Also, what does a mental FCE have to have to be considered favorable? My psychiatrist marked "Marked" for concentration, remembering complex decisions, ability to function in work setting.
Donna
my question is; Ihave been giving an hearing. I want to know why is it taking so long. I am just about in the dog house; and out of my house. my bills are getting more than I can bear.What can I do get help; and try to see if my hearing will speed up progess.
How long does this process takes once the hearing has been requested? I have cancer and my savings won't last forever. I have been off of work for 8 months and denied twice, even though I can barely function most days. All of my medical documentation supports my claim, but all I hear is that the entire process could take a total of 22 months from the time I first filed.
I am curious as all the previous posts are what is your opinion of my hearing. I have been disabled by VA 100% unemployable since Dec 2003. Yet I haven't worked since March 2002. I underwent 3 surgeries to my neck with a final fusion of c5-c7 with plate and four pedicle screws. then I had a low back fusion for pars defect and sciatica in legs. I underwent a left arm ulnar transposition in 1982 due to the ulna groove being filled in. Now the nerve is partially paralyzed and causes pain at light touch. I underwent in Aug 08 full right shoulder replacement. I have been seeing a psychiatrist and psychologist at the VA for 5 years now for severe depression and suicidal ideation at times. I have up and down periods, I am taking Lithium, Venlafaxine, Trazadone and have had to have a Fentanyl pain patch to take away the severe pain which causes me to go into rages when dealing with my family and my condition. My ALJ hearing was held in Dec 08 and at the time I explained my VA disability findings. The Judge said they were irrelevant, but I am a Veteran and see all VA doctors. I found the Judge to be contradictory at the end of the hearing when he wanted to know if the original award letter of my disability was in the file. My attorney assured him it was but said we whould provide him one for sure as soon as possible. I had a Physical Functional Capacity form from my Orthopeadic Surgeon and a Mental Functional Capacity form from my Psychiatrist both stating I could not maintain gainful employment now or in the future. When the Judge question the states expert witness a Occupational Expert. He stated that their were few if jobs in the economy a person with my disabilities could perform. The expert further stated that based upon my doctors reports thought and with the totality of my disabilities I would not be able to maintain gainful employment.
Just last week 1st wk of Feb 09 the judges clerk contacted my attorney to ask some questions and indicated the judge was inclined to give me disability back 12 months and forward 6 months temporarily. This would put me at 5 years from my date of last employment, which would make me ineligible to apply again until I met earnings periods again. I said I wouldn't accept that. I feel with my doctors statements and the ME's statements the judge can't find a way to deny but was trying to screw me because he felt i made enough money with my pension and VA Disability as he alluded to he couldn't understand how I went BK and lost my home when I was bringing in so much money already. the problem was I went 9 months due to clerical errors in AF personnel at the time of my retirement. I had to refinance my home and had to take a 2/28 arm which I felt would allow me time to sell as we had 7 kids in our home and were going down to 3 so we could go smaller but without income I couldn't qualify for financing then in 2005 my home dropped 150K in value and I couldn't sell for what I owed. I explained this but he still didn't understand. With 2 boys in college one in high school and 2 girls in middle school ad my wife with chronic immune disease which she receives 800 a month we didn't have much to make it. We lost nearly 300,000 dollars in market and had to use our last 145,000 to keep us in our home until Dec of 2007 at which time we turned to keys over to lender.
What is your opinion did I do the right thing, I have to worry about the future, i am not concerned so much with what is owed in back benefits but the future is far more important with 3 boys in college next year and my girls in middle school one with Autistic Spectrum disorder and the other with great future of college and graduate school.
I am afraid the judge is looking for a way to deny because he looks at me a guy who worked through pain in the Military for 15 years and finished as a recruiter where I had to make myself look great all the time and put a smile on when I wanted to cry. I always had a can do attitude and it has been contrary to my general demeanor to look for disability. But when I get migraine like headaches and feel like jumping from bridges regularly to get out of the pain, the judge couldn't really see this. I have always been to proud to show my pain and hid it. What do you think he will do with both my doctors supporting that i can't do gainful employment and the ME AGREEING.
tHANKS FOR your response in advance
DONALD
Donald:
Decisions about whether to accept an amended onset date or to accept a resolution of your case other than fully favorable are among the the most difficult faced by claimants. On one hand, it would be nice to have a resolution, but on the other hand, it can be very frustrating to give up something that you deserve. Advice about what to do is best left to your lawyer – it would not be appropriate for me to offer you legal advice in a blog post.
It does strike me that your judge appears to be taking a very hard line – I wonder if your attorney has any thoughts about whether this judge's decisions might be subject to appeal.
At the end of the day you should do what feels right to you, taking into account the advice offered by your lawyer.
I have been on disability for the past four years due to various illnesses & conditions. I want to take some online college courses because I eventually want to try to go back to part time work. Do I have to notify social security about starting those courses or can I just start?
I have been injured since 1999 with a low back multiple fusion. I have been to Social Security Court 2 times, had three back surgeries, I have been through pain management inpatient, recently found a long term low back center to help with medications, I have been retrained at college for using a computer, QRC just recently wrote letter ageeing that I am totally disabled, I had a temp. part time job last year working 2 to 4 hours in a day and up to 15 hours a week as an intern. I can not work, because of my pain and problems sitting, standing, lifting, ect. I have just recently had a FCE preformed and I am waiting for the letter of the results to come. A Social Security Attorney I talked to said that if the letter from FCE does not show that you cannot do any of these things that there is no case. I have not worked prier to 1999 and going to college other then the 140hrs I worked last year. Witnin a couple months now, my ship will sink. I have exhausted everything and have done everything possilbe to work in my condition and unable to hold a job. I am praying that help is near by.
Jonathan;
I have been diagnosed with hypersomnia/narcolepsy extreme fatigue, Epstein-Barr virus, leg length discrepency of 1 1/2 inches, servere depression, GAD and substance abuse, neck/back pain from disk protrusion years ag. I was an ambulance driver -paramedic then became a Physician assistant -PA, I have always had trouble with missing work, school and was put on probation for my extreme fatigue among other things, I take Coumadin and have had numerous internal bleeding episodes- I guess my question is I am still waiting for a hearing and I am hoping my lawyer gets all my records –is this enough to win???? thanks -Kim
Hi, i had A hearing in the begining of june and i was told by my lawyer that i won he told me that i should hear something from SSI or get a check with in a month it has been 2 months and nothing,how long does it take after you are aprroved to recieve your money?
my husband does not know how to read or write. and he does hard labor for work. went to the hearing but didnt understand the judge so he postponed it. will try to get a an interpreter for him.