By: James T. Crytzer
After being denied at both the Initial and Reconsideration Levels, your
case will proceed (if appealed) to a hearing before an Administrative
Law Judge (“ALJ”). The ALJ will be responsible for reviewing
the entirety of your file, and soliciting testimony from the claimant
and experts. If you have reached this stage, it is absolutely critical
to be represented by an attorney. Cases are frequently won and loss on
technical issues which will only be apparent to a trained professional.
It is extremely difficult if not impossible for a layperson to both compile
all necessary information and craft arguments based upon the applicable
law. An attorney and competent law firm will have knowledge about the
specific ALJ hearing your case, and will know how best to present the
claimant’s specific impairments. It is very important to remember
that this hearing before an ALJ will likely last approximately one (1)
hour, and you don’t want to waste time discussing issues that are
not critical to the Judge’s decision.
A competent attorney will focus on the most important issues, and will
make sure that you are prepared for the testimonial portion of the hearing.
Because your attorney has a history of working with ALJs, he/she will
address what matters most to the ALJ in your case.
Regardless of whether you retain counsel, the hearing will likely follows
these steps which are described in detail:
STEP 1. You will sign and be sworn in.
STEP 2. You will provide testimony under oath.
STEP 3. Medical and/or vocational experts will be called to provide testimony.
STEP 4. You or attorney will cross-examine experts concerning areas in dispute.
STEP 1. CHECKING IN.
Before your hearing, you will receive paperwork stating the time, date,
and location of your hearing. This is called your Notice of Hearing and
it is your confirmation that you are expected to personally appear at
the referenced location. It is very important that you do not miss your
hearing, because rescheduling can result in substantial delays or even
When you arrive at the Hearing Office, you will sign in with your identifying
information and the ALJ who will be deciding your case. Do not forget
to bring proof of identification to the hearing. At this point, you will
likely be searched for safety purposes. When the ALJ is ready to hear
your case, you will be escorted into a Hearing Room and sworn to testify
under penalty of perjury.
STEP 2. TESTIMONY.
Similar to all legal proceedings, you have the affirmative duty to tell
the truth to the best of your ability. If you are unsure of what is being
asked, or if you believe the question will call for you to speculate,
it is important to inform the ALJ immediately. During these hearings an
audio recording is made. If you do not provide complete responses, it
will be difficult if not impossible to supplement the records afterwards.
The ALJ will ask you questions about background, your treatment, and your
activities of daily living. The Judge will also inquire about your past
work experience and its physical or emotional demands. The ALJ is primarily
interested in identifying your disability-related limitations and determining
how those limitations affect your ability to engage in full-time work.
Because you have likely not worked for an extended period, the Judge will
review your daily non-work activities (washing dishes, folding laundry,
mowing the yard etc.), as they could provide evidence of your abilities
within the workforce.
If you retain legal counsel, your attorney will then follow up with questions
to address issues that may be been missed or ignored by the Judge. This
questioning may allow you to provide the Judge with additional explanations
for why you are entitled to disability benefits. For example, an ALJ may
ask you how much weight you can lift, yet your attorney could follow up
with clarifying questions to establish your functional work strength, such as:
- How much weight you can lift from the ground to waist level?
- How much weight can you lift over your head?
- How do you know you can lift _____ pounds?
Another example of the importance of an attorney is when an ALJ inquires
about your limitations. An individual may testify, for example, that he/she
can sit through a whole movie, but fail to understand that that activity
does not necessary confirm that you can work. Your attorney will know
how to better characterize your limitations with questions such as:
- How long can you sit and use a computer?
- When you sit for long periods of time, does your pain increase?
- When you sit for long periods of time, do you have stand up periodically
to relieve your pain?
- Does your associated pain affect your ability to concentrate?
The importance of describing the full range of an individual’s functional
capacity cannot be overstated. It is difficult, if not impossible, for
an individual to describe their limits without knowing the subtle differences
between questions an ALJ will ask and the issues that may be raised by
STEP 3. EXPERT TESTIMONY.
A Vocational Expert (VE) is an occupational skills and placement expert
who addresses where you can work based upon your specific limitations.
Though VEs are not necessarily adversarial, their testimony can destroy
your claim, particularly if they believe you can work. To win your disability
claim, remember that you must prove you cannot work
any job on a
full time basis. If even one job is available for a person with your limitations, this could
result in your not being found disabled.
The VE will testify to your limitations in response to a “hypothetical
person” with your limitations, education, skills, etc. The ALJ may
ask numerous hypotethicals or simply one based upon your prior initial
and reconsideration application.
You may also hear testimony from a medical expert who has performed a medical
records review of your file. Similar to the VEs, these experts are instructed
to be neutral, though many of them view disability claims conservatively.
STEP 4. CROSS EXAMINATION OF EXPERTS.
At this time, it is your job (or your attorney’s job) to cross-examine
the experts. This can be quite a challenging task, as many issues involved
are technical in nature. Seasoned attorneys know the law, and know how
to minimize the harm of negative testimony and emphasize testimony supporting
your claim. Simply put, this is a tall order for anyone who is unrepresented.
The evidence developed during this stage can win or lose your case.
At Shook & Stone, we observe that most of our clients win their claims
at the Hearing Level. While there are never any guarantees, our pre-hearing
process develops the strongest case for our clients. We appear regularly
before ALJs, and know the best strategies to use to improve your chances.
We understand that a successful outcome could change our clients’
lives, providing them with resources, medical coverage, and security which
will support them as they battle with the conditions underlying their
claims for disability.