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The Disability Judge Ruled that One of Your Medical Impairments is “Non-Severe.” What Does this Mean and Why is it Important?

Recently I have noticed a trend at many of cases I am trying on behalf of applicants for Social Security disability. After listening to testimony, but before posting questions to the Vocational Expert, the judge will say something like this: “counselor, I am going to find that the [allegations of depression; breathing problems and COPD; knee damage and reduced range of motion in the left lower extremity; etc.] are non-severe impairments and thus will not be included in questions I ask to the vocational expert. Do you have any objections to this?”

What does this mean to you if you are the claimant appearing at a hearing like this?

The term “non-severe impairment” is a term of art in the Social Security world. When judges evaluate claims, or, more accurately, elements of claims, they are required by law to analyze your case using something called the “five step sequential evaluation process.” Continue reading →

Video Hearings vs. Traditional Disability Hearings: Why Video Hearings Might Be Your Best Bet

In previous posts, I have discussed at length what actually happens at a Social Security Disability hearing. However, I have failed to discuss the topic of video hearings (i.e. teleconference hearings via satellite), which are occurring more and more frequently these days as part of the SSA’s overall plan to reduce the Social Security Disability backlog. While most of you will experience a more traditional hearing in which you are actually in the room with the Judge and/or expert witnesses, some of you will undoubtedly experience the hearing in this alternative video conferencing type format, so it’s a good idea to know what it’s all about.

The ins and outs of video hearings

In all honesty, there exists only one significant difference between a typical disability hearing and one that is conducted via video, and that is the presence of an actual Administrative Law Judge (or ALJ). Instead of being physically present in the room where the claimant and his/her attorney are, the Judge may be hundreds of miles away. Although separated by miles, however, the ALJ is still able to see, communicate and observe your demeanor in real time. The ALJ is even able to zoom in or out, depending upon his or her preference. This capability allows the ALJ to view the proceedings from a multitude of angles. This is why regardless of the avenue in which a disability hearing is conducted, the guidelines for how you should present yourself remain the same. Here are a few tips on testifying and presenting your case at a video hearing:

  • Tell the truth
  • Do not exaggerate symptoms or pain level
  • Be able to describe a typical day in your life
  • Dress appropriately for your medical condition

The advantages and disadvantages of video hearings

Video hearings provide two major benefits: first, hearing dates are typically set sooner. To the disability applicant who has been waiting over a year for a hearing, the ability to have a hearing date sooner is a welcomed invitation that most applicants eagerly accept. Secondly, the location of the hearing is often closer to the location where the claimant resides. For those individuals whose medical condition prevents them from traveling long distances, video conferences are often a preferred choice if the claimant might otherwise have to travel many miles just to get to the hearing. Bottom line: video hearings provide convenience.

Typically with any advantage there is a likewise disadvantage. But as far as I can tell, the only disadvantage to a video conference stems mainly from personal preference; some claimants might simply prefer good old-fashioned hearings in which they are face to face with and in the actual room with the Judge deciding their case. Ultimately, some claimants may not feel comfortable testifying via video, whether it’s because they are not used to it or are simply principled against it. But having been involved with many video hearings, I can say that it is easy to get used to very fast – even within minutes. So I recommend having an open mind about the video hearing if you come to find out that yours will indeed be taking place via satellite.

A final point that should be made is that the claimant is the final decision maker in whether a hearing is conducted via video hearing or not. It is your choice. While some attorneys and clients welcome the idea of video hearings because it speeds up the disability process, there are those attorneys and/or clients that do not feel comfortable with the ALJ not being physically present in the same room as the claimant. So, if you are opposed to a video conference and prefer a traditional disability hearing, simply voice your objection and a hearing date will be scheduled when available. However, please keep in mind that when a hearing has to be rescheduled, it can take up to several months to reset the hearing date. So if you are already tired of waiting, it is probably a good idea to go to your video hearing and get it over with!

Video Hearings vs. Traditional Disability Hearings: Similarities and Differences

How are video hearings and traditional hearings similar?

  • Both types of hearing are done in real-time.
  • Your representative/attorney is present with you at all times.
  • The rule for cross-examining a witness is the same.

How do video hearings and traditional hearings differ?

  • The Administrative Law Judge is many miles away from the location where the claimant and representative are located.
  • The ALJ assigned to a case may or may not be a Judge common to the area. Administrative Law Judges are typically assigned to certain geographical areas. As a result, experienced representatives typically have prior hearing experience with a select group of judges. In video conferences, the judge assigned to an applicant’s matter is pooled from any number of locations. As a result, a representative’s knowledge of the assigned Judge may be limited. An advantage of being familiar with a judge is that the attorney knows his/her demeanor. They have an idea of what the judge expects and how he or she has a tendency to rule. This can be a major advantage in preparing for and presenting a case.
  • The Vocational Expert and/or Medical Expert may or may not be present at the location where the judge is conducting the hearing.
  • Traditional hearings take longer to schedule, whereas video hearings are scheduled more quickly.

Final assessment on Video Hearings

In closing, if you are given the option of having a video hearing in your matter versus the traditional hearing where all parties are present in one room, consider your options carefully and then discuss your thoughts and concerns with your representative. Most seasoned representatives feel comfortable in either situation. Choosing to have your hearing conducted via video will more than likely result in you receiving a decision more quickly. For most, this is exactly what is needed since it can take so long to get to the hearing level in the first place. My advice: be open-minded; there is really nothing to fear about a video hearing.

Your Credibility – A Key Factor in Winning Your Claim

In a previous blog post, I set out several discussion points that I raise with my clients in our pre-hearing conferences.  One of those discussion points has to do with “credibility” – are you a believable witness?

While I think that the quality and nature of your medical record functions as the most important factor as to whether your case will be approved, your credibility is almost as important.

When I refer to credibility, I am speaking of whether you come across as truthful and believable.   Credibility is not something you can manufacture – if your medical condition is not serious and you could perform work, you will face a difficult time winning.  However, it is possible for a truthful, legitimately disabled person to lose because he or she did not appear believable in his/her testimony.

Realize that every claimant that a judge meets during the day is asserting that he/she is disabled. Therefore, your demeanor and your testimony must come across as believable in order to be successful at the hearing. Here are some tips on how to come across as a credible witness at a Social Security Disability hearing.

1. Dress Appropriately

Chosen court attire often aids in determining the credibility of the claimant. Wherein State and Federal courts require a minimum of casual dress, Social Security hearings are generally less formal. Although informal, how a claimant dresses should be such that it conveys respect to the Administrative Law Judge (ALJ). Torn blue jeans and tank tops are examples of clothing that should be avoided at a disability hearing. This is not to say that you have to dress formal; donning formal clothing is unnecessary, and in fact, can send a conflicting message to the judge. For example, an applicant wearing high heels although she insists that she cannot walk without pain will definitely make any testimony she gives less credible. A rule of thumb is to dress conservatively but comfortably.

2. Be specific in your answers

An individual’s ability to answer with informative responses to questions posed by a judge will result in the individual’s testimony being credible. For instance, during a hearing, it is common for the ALJ to ask the applicant questions regarding his/her physical ability. Questions like “How far can you walk?”; “How much weight can you carry?”; and “How long can you sit?” are all questions that an applicant can expect to be asked of him/her during a hearing. It is extremely hard for a judge to consider the profound effect of an individual’s impairment if the applicant responds to a judge’s inquiry with “I don’t know.” If an applicant fails to be specific, then the judge will more than likely consider answers of this type not credible.

3. Don’t over-exaggerate your pain

Physical pain is common to most disabilities.  An individual’s disability caseworker as well as any ALJ expects disability applicants to list pain as a chief complaint.  As such, it is common during the hearing for the Judge to inquire as to the level of pain that a claimant experiences on a routine basis.  Again, although a degree of physical pain is expected, stating pain consistently at level 10 is considered an exaggeration and will result in that portion of the individual’s testimony not being considered.  The basis for this decision is that a consistent pain at level 10 would result in a mental deficiency.  It is unlikely that the individual experiencing pain at level ten 24 hours a day, 7 days a week, would be able to be present during a hearing, much less offer supporting and competent testimony.  A rule of thumb for describing pain is to state the pain experienced in percentages.  For example, an individual may experience pain at level five, seventy-five percent of the days, while the other twenty-five percent is at a level 10.  It is also helpful to describe any events that trigger an increase in pain.  For instance, individuals with RSD, a nerve condition, experience an increase in pain during cold weather. Doing this will also help you to come across as being specific.

So, before you attend your Social Security Disability hearing, just remember that credibility is an important element and be thinking of ways to appear credibly. Without credibility, even a deserving claimant’s chance of receiving benefits is compromised.

How I Prepare Clients to Testify at a Social Security Disability Hearing

In my law practice, I generally schedule a pre-hearing meeting with my clients prior to any hearing before a Social Security Administrative Law Judge.  The purpose of this pre-hearing meeting is for me to spell out the issues that will be addressed at the hearing, to the question and answer process with my client and to answer any questions that my client may have about the hearing process.   The pre-hearing meeting also gives me a sense of how my client might testify so that I can adjust my questions accordingly.

I thought it would be helpful to readers of this blog for me to set out briefly what I discuss with my clients in the pre-hearing conference because this discussion really goes to the heart of how to win a case.

1. Main issue – the main issue in your case is going to focus on your capacity for working.  Although there are several arguments we can make to win your case, most hearing level cases are won by arguing that your capacity for work has been so reduced by your medical conditions that you would not be a reliable worker in even a simple, non-production oriented, sit-down job.

2.  During the hearing, we will identify the specific work type of activities that you cannot perform.  For example, if you have a knee problem that prevents you from walking more than 30 minutes in any 3 hour period, this walking limitation would impact categories of jobs that require frequent walking or standing.

3.  When I ask you about your ability to perform various tasks – sitting, standing, walking, lifting, carrying, stooping, climbing, etc., don’t answer with generalities.  Saying “I can’t walk very far” or “I can’t lift very much” doesn’t tell the judge anything.  Saying “I can only walk50 yards before I have to stop and rest,” or “it takes all my strength to carry a gallon of milk from the refrigerator to the table” does convey specific information that can be translated into a job requirement.

4. In almost every disability hearing, the judge will have a vocational expert there to testify.  The vocational witness is there to identify the skill level and exertional level of your past work, and to answer  hypothetical questions from the judge about other jobs.  The more specific limitations we can persuade the judge to include in that hypothetical, the better your chances.

5. Your credibility is one of the main things that the judge will be deciding.  Factors that enhance your credibility are a long work  history, (unsuccessful) work attempts, and a sense that you would much rather be working than waiting for disability.

6. The medical record in your case will ultimately be the most important factor in determining whether you have a good case.  If your record contains reference to drug seeking behavior or malingering, you will most likely not win.

7. Recognize that I cannot lead you when I ask questions.  Give detailed and specific answers to my questions.

8.  If I ask you about pain, you can use a 1 to 10 scale, with 1 being a mild headache and 10 being a kidney stone.  Don’t say that your pain is always at a 10.  A better answer – “my pain is always at a 5, but three or four times a week it spikes up to an 8 or a 9 – if I over do it physically or if I am under a lot of stress.”

9.  If you are going to testify that you can’t sit for more than 15 minutes because of back pain, don’t come to the hearing and sit quietly for 45 minutes.  It is ok to stand up and move around during the hearing if you are uncomfortable.