Social Security disability hearings generally last less than an hour, but the agency’s hearing backlog currently averages over 18 months in many locations. When you add the 8 to 12 months it takes for SSA to conduct its administrative review, most disability claimants won’t see the inside of a courtroom for over 2 years from the date they apply for benefits.
If you are waiting 2 to 3 years for your chance to spend an hour with a judge, you cannot afford to waste time or come to your hearing unprepared. Nevertheless, far too many disability claimants waste or misuse the precious time they have with the judge by testifying ineffectually.
Last month I wrote a blog post entitled “Should You be Concerned about “Trick Questions” from the Social Security Judge?” I decided on this title not because I think that disability judges are looking for ways to trick you, but because I want you to understand how disability judges use the questions they ask to decide if you can be believed. This month I want to talk more about these “trick questions” in the context of how you may want to prepare for your hearing.
The Judge’s Role: Active Questioner and the Decision Maker
Unlike other court cases, Social Security disability hearings are non-adversarial. This means that Social Security does not have an attorney at the hearing to oppose you. Instead, the judge takes on the role of both the finder of fact and Social Security’s representative. This is why Social Security judges take a much more active role in asking questions than do judges in other court hearings. Click here to learn more about what happens at a Social Security disability hearing.
What is the Judge Trying to Find Out?
When the judge reviews your file and thereafter meets with you, he (or she) is trying to figure out one thing: do you have the capacity to perform a simple, entry-level job, 8 hours a day, 5 days a week, ongoing. In other words, are you able to perform the duties of a simple, sit down job full time. Examples of simple, sit down jobs include:
- ticket taker at a movie theatre
- textile inspector
- hand packer
- surveillance system monitor
it does not matter that you would be bored out of your mind doing one of these repetitive task jobs, nor does it matter that you could not earn more than minimum wage. It does not matter that you might not have transportation to get to one of these jobs and it doesn’t matter that none of these jobs actually exists in your local area.
If one of these simple, one or two step jobs did exist, and if someone gave you a ride every day, could you get through the workday?
How Does the Judge Decide Which Way He is Going to Rule?
My experience has been that about 90% of what the judge considers relates to the medical record. The remaining 10% relates to your testimony and non-medical evidence in the file – things such as school or employment records, or written statements from 3rd parties.
As a rule, your testimony is not likely to win your case, but unconvincing testimony can give the judge a reason to deny your claim if he is on the fence.
Occasionally, a claimant’s testimony will play a more important role. I can recall one case in particular where my client’s medical record was sparse because my client had no money for treatment, but the few records that were there – including an MRI report – suggested a significant spine impairment. My client testified that he had a special needs child and that he made the decision to allocate what little money he had to his child’s care and to forego treatment on his back. The judge concluded that my client’s testimony was sufficient to substitute for extensive medical records and he issued a fully favorable decision in that case.
“Trick Questions” from the Judge to Evaluate Your Credibility
More common, however, are situations where the medical record does document a significant medical issue but the record also suggests that the claimant’s ability to work may also be impacted by prescription drug abuse, street drug abuse or alcohol abuse. Sometimes a doctor’s note may indicate that a claimant is working for cash – not constantly, but enough to suggest that the claimant has some capacity for work.
In these cases, the judge will ask the claimant questions to which the judge already knows the answer. Why? The judge wants to test the claimant’s truthfulness. If the claimant lies about a relatively unimportant matter, the judge will conclude that the rest of the claimant’s testimony should not be believed.
I discussed an example of this type of “trick” question in my post from last month but to recap, the judge in my case asked my client if he smoked cigarettes. It is obviously not illegal to smoke but smoking is not good for you, and surgeons will sometimes refuse to operate on smokers because their recovery from surgery will be impaired.
In this case, my client’s medical record documented that he smoked periodically. However, when the judge asked my client if he smoked, my client replied that he used to smoke but quit over a year previously. After confronting my client with statements from the medical record my client eventually admitted that he smoked when he got nervous and during the year just passed he may have smoked a carton or two of cigarettes.
Again, the issue here was not whether or not my client smoked. The issue was whether the judge could believe anything my client said. In this case, the medical record was good but not overwhelming and the judge would have to use my client’s credibility as a deciding factor.
In my practice I generally spend more time in pre-hearing conferences with my clients than the amount of time that the hearing will actually take. When we practice answering questions I emphasize the importance of answering questions with specific details (i.e. 15 minutes vs. “not very long”) and I emphasize the importance of avoiding the temptation of trying to guess what the judge wants to hear as opposed to simply telling the truth.
Social Security judges see men and women daily asking for disability benefits and most judges have developed a sense about who is believable and who is not. It is unlikely that you are going to be able to outsmart an experienced Social Security judge, especially when your medical record constitutes most of what he is using to decide your claim. You just don’t want to be one of those disability claimants who manages to pull defeat from the jaws of victory.
Because I got so many comments from my first video about trick questions from the judge, I decided to record a second video where I could provide additional examples of questions that a disability judge might ask you in his effort to gauge your credibility or believability. If you haven’t done so already, I invite you to subscribe to my YouTube channel where I have posted over 125 videos about how to improve your chances at winning disability benefits. You can subscribe at http://bit.ly/subscribeSSD.