SSA Disability Hearing Advice from an Attorney: What To Do & What Not To Do at Your Hearing.

After years of fighting for your disability, you finally have a hearing scheduled. Congratulations, you're almost at the end of the line! Now comes the most important part of your case.

First, you should know that I do not recommend that you proceed with a Social Security Disability hearing without a licensed attorney. An attorney can help to maximize your benefits and get your more money, as well as come up with a strategy to win your case. If that doesn't convince you, learn how an attorney can increase your benefits by THOUSANDS of dollars.


Second, SSA may try to schedule your hearing with less than 75 days' notice. They are required to give you more than 75 days' notice, but often they try to fit hearings into the assigned Judge's schedule. In my opinion, it is usually best to waive this notice, because if you don't, your hearing will be rescheduled.


Further, you may receive a letter stating that you can waive an in-person hearing. Many attorneys object to this, because it means you will talk to the Judge over video from a local Social Security office near you. However, since the COVID-19 pandemic started, all hearings have been conducted over telephone, and there is no indication that this will change in the near future as of this writing in April 2021. During the pandemic, SSA is also sending COVID-19 waiver forms, in which you can agree to the telephonic hearing, or object to it. Again, I recommend that you agree, unless you want your hearing postponed until SSA reopens their offices, which may not happen for many months.


WHAT HAPPENS NEXT?


Before you reached the hearing level, you were denied SSDI / SSI disability 1-2 times by the disability examiners. During those lower levels, the disability examiners made some efforts to obtain your medical records. However, if your doctors did not respond, they may have made their decision based on incomplete records. This is VERY COMMON.


Now, it has likely been several months to a year since your last denial. During this time, SSA has not been doing anything to update your file, so the last set of records they will have will be dated prior to that decision. Before your hearing was scheduled staff at the SSA Office of Hearing Operations put together an Exhibit file. This file contains all of the records, forms and internal notes from the lower levels. You should request and obtain this file as soon as possible. If you have an attorney, he or she can download the file directly from SSA.


You should know that SSA judges are required to develop your medical record, meaning, they are supposed to request updated medical records. Some judges do a great job making sure this happens, but usually this only happens if you are unrepresented, and it requires you to be sure the Judge knows where you have received treatment. As part of the forms they send when they schedule your hearing, they will ask you to give them information about your recent medical treatment, sign an authorization for the Judge to obtain your records, and update your medication list. Even if you fill these forms out accurately, it doesn't guarantee all your records will be obtained. I have taken clients that went to their hearing and received a copy of their Exhibit file and was told by the Judge that they should get an attorney. Often, the Exhibit file has no records from the past year, which means the Judge did not obtain the records. It is common that your doctors do not respond to medical records requests, even by the government, and the Judges are very busy, so it is hard for them and their staff to follow-up repeatedly to get your records. Having an attorney that is ethically required to be diligent in getting your records is the usually only way to ensure your file is fully developed.


If you have an attorney, he or she will review your Exhibit file and make a list of your providers, then ask you for additional information so that they can send out records requests. Doctors are allowed 30 days to respond to records requests, and then can request an additional 30-day extension. Many medical provider fail to fill requests within this time, which is a violation of HIPAA regulations, but unfortunately is very common. This is why having an attorney is important. We frequently threaten to file complaints on this issue if they do not fill our requests in time for the hearing. However, it is very common that you will go to a hearing and not all the records have come in yet. Usually this is not a problem, because as long as the Judge was informed about these records within 5 business days of the hearing, the Judge is required to accept them after the hearing and consider them when writing a decision.


WHAT HAPPENS ON THE HEARING DAY?


NOTE: It is generally not productive or necessary to delve deep into your records or

review your file in-person with the attorney. It is your attorney’s job to be familiar with

your records and the issues in your case, and it is your job to simply attend the hearing

and answer any questions the Judge as at the hearing.


In-Person Hearings:

Hearings are usually in-person at a local SSA Office of Hearing Operations or “Hearing Office”. These offices are NOT the offices that you would go to in order to renew a Social Security card or file for benefits. They are usually in a generic office building where other businesses are.


SECURITY CHECK

You and anyone who comes with you will go through a federal security checkpoint. Everyone who accompanies you (except children) must bring picture I.D. No weapons are allowed. Do not bring anything illegal. If you do, you or anyone with you could be arrested.


The less you and your driver bring to the hearing, the better. We do not want to waste time at security and the more you carry, the more the Judge or the Judge’s staff will see you are

able to carry, and could use it as a reason to deny your case.


NO SPECTATORS

No spectators are allowed. Most Judges do not allow spectators in the courtroom, and we do not recommend it anyway. EVERYONE who accompanies you will have to wait outside or in the lobby area.


Video Hearings:

The same above rules apply for hearings that are over video. These hearings are done via video if you are far away from where the Judge is located, and will usually be in either the Hearing Office over or can be at a local SSA office where you would obtain a Social Security card, etc.


Telephone Hearings:

In rare cases, your hearing may be over the phone. If this is the case, you will attend the hearing via phone from your home or some place you have good telephone reception and a quiet place to talk. These usually happens when you cannot make it to the SSA office for your hearing, or other circumstances, such as the 2020 COVID-19 pandemic, when SSA conducted telephone-only hearings. The Judge will call you on the day of the hearing and will connect everyone on a conference call to conduct the hearing.


If you do not receive a call at the scheduled time of the hearing, it may be because the Judge’s other hearings before your have gone longer than expected. Do not panic. Your attorney will likely call or text you with an update if the hearing doesn’t start on time.


COURTROOM RULES

The judge is in charge and will decide the case at this level. Show respect to the court at all times. Be polite. Say "yes" or "no" rather than "ok" or "uh huh." The hearing is being

recorded, so we must make a clear record. Call the judge “sir,” “ma'am” or “Your Honor.” Look at the judge during the hearing. Do not interrupt the judge.


Do not speak unless asked. If you have an urgent question or concern, tell the attorney very quietly. We will advise whether we need to bring something to the judge's attention.


WHAT HAPPENS DURING THE HEARING

Having done thousands of these hearings, we can say that most of them go exactly the same every time.

  1. You and your attorney will go into a closed hearing room, where the Judge will greet you. There will be the Judge, the hearing recorder, usually a “jobs” expert, and depending on the case, a medical expert testifying over the phone.

  2. The Judge will go over some issues with your attorney and ask if the attorney has objections or concerns (likely, you will not know what to object to or address if you go in there unrepresented).

  3. Then the Judge will swear you in and ask you basic questions. Generally, your hearing testimony will be about your past work and why you stopped, your daily activities and how your disabilities limit you from doing things, your conditions, and the medical treatment you get. Really it is all about finding out from you: WHY YOU CAN’T WORK PHYSICAL AND/OR MENTALLY.

  4. After the Judge and your attorney have had the opportunity to cover whatever questions the need to, the Judge will usually ask questions about jobs to a “jobs” expert. You will likely not understand what they are talking about, and you don’t need to, that’s your attorney's job (yet another reason to have an attorney).

  5. After the “jobs” expert testimony, the Judge will allow you or your attorney to make any final statements, bring up something you forgot to mention, etc., (you can also submit written statements after the hearing if you forget to say something).

HOW TO TESTIFY

Your testimony is simple: just answer the questions you are asked. It is not good practice to rehearse answers. Rehearsing comes off as not genuine, and the Judge may suspect you have been fed answers that are not true. It is best to come just answer questions that are asked. Nothing you will be asked should be something you do not know the answer to, but if you really don’t know, it is okay to say “I don’t know,” or “I don’t remember”. We find that it actually can make you testify worse to go over all the questions the Judge may ask. However, here are some tips:


Always answer questions directly. First answer the question asked, then explain if you must. Do not get off the subject of the question. If the Judge needs more information, he or she will ask. Do not try to hide things or be evasive. Please do not volunteer other information that the Judge did not ask about. Both the judge and the attorney will ask you questions. For all questions, your focus should be on the question asked. Do not start talking about issues that have not been asked. This is rude to the judge and also makes a confusing record. Do not exaggerate, Judges will take you literally, or they will not believe you. Do not use the words “never” “always” or say you do “nothing” during the day, because even sleeping is something.


Do not testify you cannot do something and then do it during the hearing. For example, do not say you can only sit for 15 minutes and then sit during the hearing for an hour. Do not say

you cannot reach and then reach across the table. You should tell the attorney you need a break to stand or walk, if you become too uncomfortable sitting. Your testimony will be under oath. You will be sworn in before you testify. You must tell the truth to all questions. If you do not, you will almost certainly lose your case, and you could be convicted of perjury. Lying to a judge under oath is a crime. The judge has access to all your medical records and other government records such as criminal and tax records. As your representative in this Court we cannot allow you to give false testimony and will tell you to correct the lie.


Work after disability began, illegal drug use, alcohol abuse, and criminal history are the areas we want to be sure you warn us about before the hearing, if there is anything you are worried about telling the judge. Generally, this information is already in the Court’s file so you definitely want us to know about it because the Judge may have many questions for you about these issues.


EXPERT TESTIMONY: YOU WON’T UNDERSTAND IT, BUT YOU DON’T NEED TO IF YOU HAVE AN ATTORNEY

Please sit quietly and pay attention when you are not testifying. Do not worry about what the “jobs expert” or medical experts say in their testimony, that is our job and what they say may not have any effect on your case. You are not allowed to talk during anyone else’s testimony and Judges will become very angry if you interrupt (even the nicest Judge will tell you to be quiet). You may whisper questions to your attorney if needed, but they may ask you to wait so that they can focus on what is happening at that time.


WITNESSES: WE REQUIRE WITNESS STATEMENTS WITH FEW EXCEPTIONS

Witnesses should write statements about their experience with you and what they have seen as far as your disability, rather than try to testify at the hearing. Written statements cannot be cross-examined and can be checked for accuracy before submission. Judges prefer that only you and any experts testify and often will not allow more witnesses. The amount of time is

very limited.


DRESS AND GROOMING

Please where respectful, non-political or dirty clothing. This is not a formal hearing, or job interview, so you should not wear formal clothing like dresses or suits. You should wear

clean and plain clothing, and not show excess skin.


AFTER THE HEARING

Usually the judge does not announce the decision at the hearing. Generally, it takes three to five months after the hearing to get the written decision. The decision must be in writing. A copy will be sent to you and us at the same time.


If you have questions, give us a call at 602-607-0000 or email at contact@jdisability.com.

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