The Social Security hearing is probably the most stressful part of the claim for most people.
To start, it’s probably the first time the person is in front of a judge.
Claimants have these expectations about the place, how a judge will call you and how the judge will address the impairments.
The list goes on.
If you wish to learn about how the hearing room is set up or the dress code, check my post about Preparing for a hearing (The Dress Code Edition!)
Today, I want to talk about the actual questions and how you can argue your case.
The Hearing Prep
A few days before the hearing (my preference is no more than two days before), I like to prepare my clients for what is to come.
Preparing for the hearing is not just a matter of telling them what to wear or how to get there. It is also the time to go over all possible scenarios that, we attorneys, commonly see during those hearings.
My favorite method to prepare a claimant is to go over the questions that most judges ask.
Going over these questions accomplishes two things:
- We get a “feel” for how the claimant will do at the hearing
- We end up creating a “checklist” of everything we want to “cover” at the hearing.
Getting a “feel” for what the claimant will do at the Social Security Hearing
I know it sounds strange to say this, but the reason I like to prepare my clients no more than 2 days before the hearing is that I want them to be “feeling” the hearing “looming” over their head.
You are probably thinking, “Why would you torture people like that? They are already nervous about the hearing and you want them to feel that pressure?”
Yes! I do.
Because when they feel that the hearing is just around the corner, claimants are stressing out. And when I’m preparing them for the hearing, they get to “stress out” BEFORE the hearing.
They also get a chance to make mistakes and I get to correct those mistakes BEFORE they happen.
When the prep is done they had a chance to “feel” how it would be during the hearing.
When the hearing finally comes, even if they are a little nervous, they already know how it’s going to be.
And the hearing goes very smoothly with a prepared claimant.
Creating a checklist
Creating a checklist of things I want to cover at the hearing is important.
This is the claimant’s “Day in Court” and the claimant waited months, if not years for that day.
The last thing you want to do is “forget to mention something” or forget an important detail from the evidence.
That’s why I like to do a “pretend” hearing questionnaire as if I were the judge. I ask the question, the claimant answers and then if there are things that need to be corrected I use this opportunity to do so.
Say I ask the claimant “what do you do from the time you get up, to the time you go to bed?”
Note that “open ended” questions are a big trap if you are not prepared.
This is where claimants can “volunteer” information that can hurt their case. Or they answer in a way that can cause the judge to think they are “more active” than they actually are. etc.
When going over these open ended questions during a prep you can create bullet points that you can focus on during the hearing.
I have said this before and I will say it again:
“Believe it or not, you already know all the answers the judge is going to ask you”
The only issue is HOW you are answering those questions.
Note that memorizing is also not the answer.
-Using short and concise answers is best.
-Don’t start from the beginning (“Once Upon a time…in 2015, I got into an accident….). The judge is not interested in long stories.
-In an open ended question, try to narrow it down.
“From the time you get up to the time you go to bed” looks open-ended but it doesn’t have to be.
-Remember that a day is usually divided by “getting up, breakfast, lunch, dinner, bed”.
Sure, a lot happens in between those times but start with these 4 times of the day first.
Let’s look at an example:
I get up at 6 am and use the bathroom. I take my pills and drink a cup of instant coffee for breakfast. I go back to bed to wait for my meds to kick in, then I try to dust a little bit (no more than 5 minutes).
At lunch time I just reheat something in the microwave. On a good day, I wash my plate and fork. If I’m not well (which is usually most days) I just go lie down for a couple of hours.
Around late afternoon, I walk around for 5 minutes because my back hurts, then I sit down and watch some tv for 10 minutes but I have to lie down after that, or sit on my recliner because of the pain.
I eat some dinner my husband/friend/family member prepared and I go to bed after that. It’s not uncommon for me to wake up in the middle of the night with severe pain. I have to walk around for a while before trying to sleep.
–Always, narrow down “open-ended” questions by using bullet points so you don’t go “off tangent” and “talk too much”.
Other things to consider
The judge is there to ask questions and assess whether you are disabled.
A lot of judges are cut and dry. But some like to crack jokes to see how you react.
Other times judges like to make you feel bad with some of their line of questioning.
I remember one judge who liked to ask: “Don’t you feel bad you are applying for disability?” as if to mean “Aren’t you ashamed you are applying for disability?”
Yup. True story.
In a situation like this, practice a good response but don’t be rude to the judge. Don’t say things like: “I wish I could work” or “I would not be here if I could“.
Judges hear this ALL THE TIME.
Try a more “altruistic” approach like:
“I have tried everything. I have tried part-time work, accommodations at work, and even simpler work and despite all that, I have been unsuccessful in returning to work”.
Judges don’t want to hear anything that sounds like a “pity party”. Again, they hear this all day long.
-Make the judge see that you have a great work history and that you were reliable and punctual, or anything that shows how great you were at your job.
I know this is a horrible thing to say, but a lot of people see disabled people as “lazy“.
We know this is not true.
But did you know your judge is not immune to those same thoughts?
-Having the judge visualize a “hard worker” will help the judge create an image in his head that “no one in their right mind would leave a job like yours unless something was very wrong“, without you saying those words!
The reason this approach is more effective is that it focuses on your “efficiency” as an employee and not at the fact that you are now “house bound” or sitting “idle” at home.
You want to take away that image from the judge’s mind even though you are trying to convince the judge that you can’t work anymore.
Judges like “hard workers”. A good work history adds a lot of credibility to a claimant. And credibility is key for a judge to believe you.
Here are a few other important things you should consider too:
-The judge is not your friend. He has a job to do and you have a job to do (yes, even if you have an attorney).
-Your job is to answer the questions as best you can.
-If you don’t remember the answer, say so. Don’t be afraid.
In some cases, your forgetfulness can actually help your claim ( just don’t overuse this!)
-Just be sure not to forget your date of birth! (Yup, another true story which some sad results)
-If you are not represented, you may create your own checklist. But use it to see if the judge covered everything YOU wanted to say.
The judge will ask his questions first, then he will invite you to add more to the story.
Bringing witnesses to your hearing
-If you are bringing witnesses, they should wait outside the hearing room until called.
-The more neutral the witness the better (co-workers, supervisors). Family can be redundant if you can speak for yourself.
-If these witnesses can’t come, letters from them are as just as good.
-Witnesses should not be used if they will not add anything to your claim, or to just state the obvious.
-Only YOU can testify about your pain. Witnesses can testify about what they see, but not about how you feel.
-Witnesses can be brought in to help in mental impairment cases when there are issues of cognitive impairments (Alzheimer’s), memory issues (brain injuries, strokes) and other impairments where the claimant is in a “different” reality.
Submitting evidence prior to the hearing
One thing that most claimants are not aware (unless represented) is that after the case was sent to the “hearing track” or the ODAR (Office of Disability Adjudication and Review), Social Security will no longer order medical records on your behalf.
So from the time you request a hearing until the day of the hearing,
You MUST order and submit medical records so that the judge will have recent and updated medical records to evaluate your case.
I can’t tell you how many times I receive calls with claimants trying to get an attorney prior to the hearing and I see that there is a huge gap in medical treatment.
Often times, it’s not that the claimant has not gone to the doctor. The claimant simply didn’t know that Social Security was no longer ordering records and when they show up at the hearing there are no new treatment records to look at.
We are talking an average of 2 years of missing records that didn’t make it into the file!
And here are some scenarios that usually happens when there is a big gap like that:
The judge will usually ask if you wish to “continue” (reschedule) your hearing, so you can get an attorney.
This is code for “there is something wrong with your file” and you should really consider it.
Judges are not allowed to give you advice, so this is the closest thing to one. Take that advice!!
I know you waited a long time and you are “sick” of waiting. But if a judge “suggests” you get an attorney, please get one!
Yes, it may push your hearing another 3 to 6 months in some States.
But if you go through with your hearing after that suggestion, most often you will get a denial. Either because your file is incomplete or there are other issues that a judge can’t tell you.
2. You go through with your hearing despite the judge suggesting a continuance and you get denied.
Say, you appeal to the Appeals Council saying that the judge made many mistakes in the decision.
But here is what the Appeals Council is looking for:
–What records were available to the judge at the hearing? And based on those records, was the judge incorrect in his ultimate decision?
If your records were incomplete and all the judge had were records from 2 years prior to the hearing, of course, he will deny the case!
In this situation, the Appeals Council is correct in siding with the judge because of that huge gap.
Consider this: How could the judge tell if you were disabled if there were two years of missing records?
Always remember: If you are not seeing doctors
that means your impairments are “not that bad” in the mind of Social Security!
It doesn’t matter if you can’t afford health insurance, or that you doctor retired, or that your doctor says “there is nothing he can do for you“.
If there is a gap in treatment that’s what the “decision-maker” will think.
So when you decide to go ahead with your hearing despite the judge’s suggestion, be mindful that your “impatience” can come back to hurt you because you could have continued that hearing to get more records or hire an attorney to get the file well prepared for your hearing.
You waited this long, what is another few months if it means a better chance at winning?
I know you have bills to pay etc, but “the stars” have a way to warn us about things and if a judge is suggesting you reschedule, the stars are telling you something. You don’t want to go through all these years waiting only to be denied because of lack of records supporting your claim.
- Read my post about Preparing for a Hearing: The Dress code edition;
- Prepare a Checklist of things you want to cover at your hearing
- Line up witnesses who can add an “outsider” perspective to your case;
- Start submitting your medical records as soon as you receive a letter from ODAR stating that they received your case for a hearing;
- If you are at the hearing unrepresented and the judge suggests you reschedule it to get an attorney: Do it!
In the next post, we will talk about how to handle the Vocational Expert at your hearing. Stay Tuned!
If you just requested your hearing, there is still time to fix your records:
I recently created a course on How to Read Your Medical Records like a pro so you can find out if your records are actually supporting your claim.
If they are not, then you learn exactly what to do to fix your medical records in time for your hearing.
Simply click on the image below and you will be directed to the course page:
Because you are a great reader, I have a surprise for you:
Sign up for my email list below and receive a free copy of the very same questions I use to prepare my clients for their hearing.
Although this list is not exhaustive, these are some of the most common questions judges usually ask claimants during the hearing.
Feel free to add your own answers to that list and be sure that it covers the majority of your impairments so you don’t forget anything at the hearing.
Until next time,