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.