April 23, 2014

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.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.