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 dismissal.
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 your attorney.
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.