Hello, my name is Antonio Bruni, I’m a Social Security Disability attorney with Michles & Booth, and I wanted to talk to you today about your hearing with the administrative law judge. You’ve applied for disability, you’ve waited two years or more to get to the judge, and that day has finally come.
I want to begin by warning you if you’ve been advised by the Social Security Administration that you have a hearing coming up and you have not yet retained an attorney specializing in Social Security Disability cases, I would highly recommend that you obtain one. Waiting until right before the hearing will prevent your attorney from properly preparing for the hearing and could result in unnecessary delays.
If you make it all the way to the hearing and decide you want an attorney at that point, most judges will give you leave to find one and reschedule the hearing once you have hired an attorney, so don’t think that just because you’ve made it to the day of the hearing and don’t have an attorney yet that you’re stuck going it alone.
The Hearing Is Formal, Yet Informal.
To begin with, I always tell people, “Your Social Security hearing is both formal and informal.” What I mean by that is you will be under oath at the hearing, so it is formal in that the rules of perjury will apply. When I say that it is informal, what that means and what I tell people is, “This is a conversation, not an interrogation.” It’s your chance to speak with the Social Security Administrative Law judge about your condition, how it affects you in your day to day life, and why you think it prevents you from working.
Most Social Security judges are very compassionate, so the Social Security hearing tends to be non-confrontational and more informal and conversational. There is no formal dress code, so feel free to dress comfortably. Also, you will be given a time for the hearing; you will need to arrive at least 30 minutes before your hearing time in case the judge would like to start your hearing early.
Topics That Will Be Discussed At The Hearing
In most Social Security hearings, specifically in the Mobile district, which covers the lower part of Alabama and the first three counties of Florida, the Social Security judges will do the questioning in your claim. They usually begin with what I call your resume. That’s your age, education, and work history.
They’ll want to confirm your date of birth. They’ll want to know how far you went in school. Did you graduate high school? Did you only go to 11th Grade? What was the last grade you finished? Did you get your GED? Did you get any vocational training or certification after high school which would prepare you for some other type of work?
They’ll want to know about things like certifications. Do you have a commercial driver’s license? Do you have a welder’s certificate? Do you have a CNA certificate? The sort of things that would prepare you for other work.
And then there’s your work history. The judge will ask about your last 15 years of employment. They will be most concerned with jobs that you performed on a full-time basis over at least a 90 day period, though they will ask questions about all jobs that you’ve done for the past 15 years.
For this reason, it’s not a bad idea to put a resume together for the last 15 years of employment that you’ve had so that you’ll have some idea of what jobs the judge is asking you about. Typically they want just a simple description of what you did at work, how long you did the job, and how much money you earned.
If you have any employment after your application date, they may want payroll records or W-2s from that employer so they can confirm that you weren’t earning more than is permitted by Social Security during a time period for which you are asking for disability benefits.
After confirming your education work history, typically the judge will move into what medical conditions you feel are keeping you from working. This is usually done in a general open-ended question such as, “Why is it you do not think you can work anymore?” Or more specifically, “What medical condition do you think it is that stops you from doing the type of work you used to do?”
Either way, it’s best to be prepared with a short answer to that question as to what medical conditions you think are most serious, and what about those conditions keeps you from working. If you want to create a list of your medical conditions so that you do not forget one, that’s not a bad idea, but I can assure you that any medical condition that’s mentioned on a regular basis in your medical records will be considered by the judge.
You don’t have to worry about failing to mention something, and it not showing up in your Disability Order because you didn’t mention it at the hearing, as long as there’s routine medical treatment; if you’ve been seeing the doctor for it, the judge is going to consider it. This is really just the judge’s opportunity to narrow what he or she is considering as to what’s keeping you from working. A lot of people have multiple medical conditions, and the judge just wants to narrow it down so that he or she can narrow their questioning to the one, two, or three biggest conditions that are keeping you from working.
Activities of Daily Living
Once the judge has a feel for what medical conditions you think are most serious, they typically then move into what we called activities of daily living, and that’s exactly what it sounds like. It’s what do you do on a daily basis? This is where we get into what I call my “Yes, but” method, and that is when the judge is asking you what you can do on a regular basis, you don’t want to say, “No, I can’t do anything. I can’t cook, I can’t clean, I can’t work in the yard. I can’t run any errands, I don’t have any hobbies. Woe is me, I lay on the couch all day with a Bible and a bedpan. I can’t do anything.”
That doesn’t help our case, and the judges really don’t like it. What we need to explain to the judge is, “Yes, I can do these things you’re asking me about, but this is the problem I have doing that activity,” and that’s where “Yes, but” comes in.
I tell everyone I prepare for a hearing, “All of this that we’re talking about today, I’m throwing a lot of information at you. Leave here remembering these two words: ‘Yes, but.’ If you remember that, and if you tell the truth to the judge, don’t exaggerate, don’t withhold information; if you tell the truth to the judge and you say, ‘Yes, but,’ we’re in good shape at this hearing.”What the judge normally does at this “activities of daily living” step is talk to you about exactly what it sounds like: what are we doing all day? When you wake up, do you read the morning paper? Do you watch the morning shows? They’ll ask about social media; do you have Facebook, do you communicate with friends and family by Twitter? By email?
Do you do any chores around the house? Do you cook yourself breakfast, do you make yourself coffee? Do you do dishes? Do you sweep, do you dust, do you mop? Do you clean the living room? Do you clean the bathrooms? Do you do the laundry? Do you make the beds? Do you do any chores outside? Do you mow, do you weed, do you edge? Do you have a vegetable garden that you tend, do you have a flower garden that you’re pulling weeds in?
Do you run any errands? And this is normal errand type activity. Do you go to the grocery store? Do you go to the bank? Do you go to the power company to pay your bills? Do you have friends or family members that you run around to their doctors’ appointments? Do you have a pet that you take care of? Do you have kids, or grandkids, or friends’ kids that you watch when they get off school before their parents get home at five o’clock? Just normal errand activity.
Then usually what the judge ends with is, “Tell me about your social life. What sort of hobbies do you have? Do you hunt, do you fish, do you sew? Do you ride horses? Do you sing karaoke at bars with friends? Do you sing in the church choir?” And I always end at “karaoke at bars with friends and church choir” for a reason, and that’s because it’s partially a trick question, especially for people with mental health conditions.
They’ll think that they can say, “All I do all the time I just go to church, Your Honor, I’m a good Christian. I go to church five days a week, and I sing in the choir on Wednesdays, and I sing in the choir on Sundays.” The way it’s a trick question is, what the judge is thinking: if you can go to church five days a week plus nights, then you can go to work five days a week. Obviously, your condition isn’t keeping you from socializing, so why should it keep you from working?
That’s the mindset that I tell people they need to be in, is these questions aren’t the judge prying into is your house dirty or not; it’s, “If you can clean your house, you can clean my house.” That’s a job, that’s maid work. “If you can cook you breakfast, and I love to use breakfast as my example; if you can cook you and your family breakfast, you can cook me and my family breakfast at Waffle House.” You just admitted you can be a short order cook, and this is where “Yes, but” comes in.
With the breakfast example, if the judge says, “Can you cook breakfast?” You say, “Yes, but because of my bad back, I have to pull a chair or a stool over from the kitchen table to sit at the stove because I can’t stand for long periods of time, but I can cook myself breakfast, Your Honor.” Or, “Yes, but I make a lot of my meals in the microwave now because I can’t stand for long periods of time.” Or, “I make a lot of ham sandwiches or peanut butter and jelly sandwiches because it’s easier and I can do it in shorter intervals without needing a break, as opposed to standing and making bacon and eggs that takes 45 minutes at a stove.”
It’s that way with anything the judge is telling you about. If the judge asks, “Can you clean your house?” If you just say “Yes,” he’ll say, “Great. Holiday Inn is hiring, you can work housekeeping at Holiday Inn.” But if you say, “Yes, but I have to clean for five minutes, and then I sit for five minutes, and then I clean for five minutes, and then I sit for five minutes,” which I tell people is the truth. If you have to take a break every five minutes, it doesn’t mean you can’t clean your house, it means, “Yes, I can clean my house, but I need breaks.”
Back to that, when I say tell the truth, if you have no trouble cleaning your house, tell the judge you have no trouble cleaning your house. Maybe that’s not the reason that we’re disabled, is from a physical limitation that’s preventing us from doing that.
It all goes back to tell the truth, don’t feel the need to exaggerate; the “Woe is me, I can’t do anything. I can’t cook, I can’t clean, I can’t do yard work.” Tell the judge if you can do it, what issues you have doing it. Just lay it out for the judge. I call that my “Yes, but” method and I’ll tell you like I tell everyone else: if you only get two things from listening to this, it’s “Yes” and “But.”
The next thing the judge often talks about is what I call the unmentionables. If there’s something that would show up in your medical records that could be negatively construed or contributing to your disability, which you may not be proud of, we still have to talk to the judge about it, and specifically what I’m talking about is, it happens all the time, is issues with drugs and alcohol.
If you’ve had an issue with drugs and alcohol, the judge probably knows about it and is going to ask you about it at the hearing. I go right back to you tell the judge the truth. If you have an issue with drugs and alcohol, tell him you have an issue, or her, that you have an issue with drugs and alcohol. If you’ve been to counseling for it, let him know that. If you have stopped using, definitely let the judge know that.
If there was a temporary lapse because of a death in the family or some other reason and you’re back and not using again, let him know that, but explain to the judge and do not hide it. If you lie to the judge and tell them you’ve never had issues with drugs and alcohol, and it’s scattered throughout your medical records, even that you have a history of drug and alcohol abuse, you’ve lost your credibility and the judge isn’t going to believe anything else you’re telling him, so tell the judge the truth about that.
There’s also issues with criminal records. Unless you’re actively incarcerated, that’s not going to have a negative effect on your claim. Admit it, tell the judge what happened, and we’ll move right along, but do not withhold information because you’re embarrassed or you don’t think it’s relevant. If the judge is asking you about it, you need to tell the truth.
At this point, the hearing turns over to the vocational expert. The vocational expert is a human resource specialist. They’re the person who knows, who takes your resume that we talked about at the beginning of the hearing and says based on the limitations that the judge is going to assign, whether or not you can do your past work or any other work.
This is the point where really, you’re just a spectator. Your attorney should be working at this point, asking questions of the vocational expert, following up on questions the judge asks the vocational expert. The vocational expert will identify your past work, they’ll give all the jobs that you’ve performed over the last 15 years, they’ll tell the judge the dictionary of occupational titles code for that, and you’d be amazed, Egg Washer has a code.
Every job in the United States, the government has given a code to, so they’ll give the code and then they’ll say the Specific Vocational Preparation, the SVP. That’s really just, “How long does it take to learn to do that job?” A lower SVP means it only takes a few days to learn, a higher SVP could be 10 or more years that it takes to learn that type of job.
They’ll identify your past work, the judge will then give hypotheticals, or sometimes they’ll ask your attorney to give the hypotheticals, which is why you really need an attorney at one of these hearings, and the judge or the attorney will say, “Well, assume these are the limitations.” Hypothetical number one: Assume these limitations. “Can you do any of this past work? Can you do any other work?”
Hypothetical number two, and they’ll give a separate set of limitations. “What if these are the limitations? Can you do any of this past work, can you do any other work?” And the judge will usually go through and give one, two, or three; your attorney will follow up and give two, or three if necessary, and the judge will say, “Thank you very much. Anything else? I’ll get you out an order as quickly as possible.”
Waiting for a decision.
That’s when we come to the waiting game. At that point, it typically takes a few months, six to eight weeks, to get a formal written Notice of Decision, and that Notice of Decision explains, it’ll summarize all your medical records, it’ll summarize all the testimony at hearing; the judge will talk about the vocational expert’s testimony, and basically what the judge is doing is picking which one of those hypotheticals he thinks is most consistent with the medical records as a whole with your testimony, and with the doctors’ opinions.
If that hypothetical had no work available, that’s how you win your Social Security claim. If there was work available, then that’s how you lose a Social Security claim. Like I said, that usually takes six or eight weeks to get that answer back.
Once you get it, it’ll be Notice of Decision fully favorable, which means that you got everything you were asking for. Notice of Decision partially favorable means that you got part of what you were asking for but not everything. Notice of Decision unfavorable means that you didn’t get anything you were asking for.
Any of those can be appealed; you need to speak with your attorney about it if you’re not happy with the answer, no matter which one of those three it is, and proceed with what would be the next step of the process after the hearing if you need it, and that’s an appeal to the Appeals Council.
If you have any other questions, give me a call. I’m always available for a free consultation, and I look forward to hearing from you soon, and best of luck.
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