The purpose of this writing is not to share hearing strategies with the reader, but more to paint a picture of what is happening and when, in an attempt to de-mystify the hearing process. It should be noted that there are many opportunities for cases to be won and lost along the journey described herein, but for our purposes here, a general description is what will be given.
What should have been prepared and submitted prior to the date of hearing? All medical evidence that is available have been submitted prior to the date of hearing. Additionally, if the Claimant’s physician supplied opinion about the Claimant’s residual functional capacity (RFC), or supplied any letters sharing their opinion that their patient is disabled these should be submitted well in advance of the hearing if possible. It is always possible to submit any additional evidence on the day of the hearing, but it is advisable to get this in as early as possible as the judge forms their preliminary opinions of the case. An additional item that may be submitted is a pre-hearing brief which explains the Claimant’s theory of the case in legal terms for the judge. Generally, these are regarded as helpful if they are objective and distill the issues clearly into discernable components.
Does a hearing happen in court? Not in the traditional sense. Hearings are held at hearing offices, and by video conference. They do not take place in traditional courtrooms and they are private affairs, meaning that there will be no gallery of observers awaiting their time with the judge while watching your case. Most hearing rooms are fairly small conference rooms that are designed to contain 4-5 comfortably at a given time. There is usually a central table upon which rests several microphones, which will be used to record the hearing. At one end of the table (and often stationed above the other room occupants) sits the judge (or the video screen), and at the other end sits the Claimant. To the Claimants side will sit his or her attorney. Most hearings last between 30 minutes and one hour, but a variety of factors may influence this.
Who is present? There are most commonly four primary players, which may be supplemented as a case demands. Those players are the judge, the claimant, the court reporter, and a vocational expert (VE). Additional individuals that may be added include the claimant’s attorney, a medical expert (ME), and any witnesses that the claimant may wish to call. As one might imagine, the judge is in charge of the room. He or she will begin the case by stating that the case is going “on the record", and making introductions. It is important to note that the Rules of Civil Procedure are often observed, but not expressly required by law. It is always proper to refer to a judge as, “Your Honor" or the slightly less formal “Sir / Ma’am".
What happens once the hearing starts? After going on the record, the judge will then swear in any individuals who will testify in the case. Those sworn are typically the Claimant, the VE, the ME, and any witnesses that the Claimant will call. At some point, he will ask if the record is complete as it currently exists. For this reason, it is advisable to view the case disc (or file) immediately before a case so that additional evidence that may not have made the record may be submitted.
Next, the judge may also ask the Claimant to stipulate to the credentials and experience of the VE or ME. Stipulating means that one acknowledges their credentials of the experts asked to testify, and agrees that their experience gives them the ability to provide information about the Vocational and Medical issues present in the case. At this point, the judge may allow a Claimant to make an opening statement or simply may dive into the question and answer process. It is important to answer questions not only clearly and with a yes or no, but also to expound on the answers. It is never appropriate to embellish the truth, but certainly presenting the truth in a light favorable to the Claimant’s case is the desired end. The case is being transcribed, so clear and audible answers are vital.
An opening statement is a great place to set the table for the issues being addressed in one’s case, but it should be objective and targeted at the true issues at hand, not simply a statement of opinion. Once a statement is made, the judge may begin asking questions of the Claimant, or may allow Claimant’s counsel to question the Claimant. The subjects most frequently asked relate not only to the medical condition, but to residential conditions, state of self-care, physician relationships, income, activities of daily care and living, support received from others in the form of money and physical assistance, and details about past jobs held. If the judge misses asking a question about what the Claimant believes is a crucial component of one of these subjects, it is important that they note this, and testify it into the record later.
If the judge asks questions first, they will then usually allow the Claimant to present their own testimony later. If the Claimant presents their case first, the opposite happens and the judge will ask questions. Once this is complete, the judge will typically call the Vocational Expert to testify. Vocational testimony is frequently an un-nerving process to Claimants, but it is important to note that this is a hypothetical endeavor. The judge usually will present a few scenarios to the VE regarding a worker of a certain age, education, and experience that exhibits certain traits or limitations. Once this presentation is made, the judge will ask if such a worker can perform the Claimant’s past relevant work or if there is work that the hypothetical worker can perform. If so, how many of those jobs exist in the national and local economy. Once the VE has opined on these hypothetical claimants, the Claimant will have an opportunity to cross-examine the VE on those particular scenarios, or develop a scenario of their own. There is a great deal of strategy that may be adopted here, and it is will be the subject of another article in the future, but it should go without saying that the Claimant wants to ensure that the hypothetical claimant accurately portrays the symptoms and challenges of the real Claimant, and cannot return to his old past relevant work or perform any other job in the economy.
Once testimony of these parties concludes, the case will most often take one of a couple of turns. In certain cases the Judge will make a favorable decision on the record. This is often good news, but can also come with some procedural pitfalls such as an adjusted onset date, that require some analysis before accepting. If the judge does not provide a decision, this is not a bad thing, the judge simply may wish to analyze the case in light of the testimony provided. The judge will close the record and dismiss all parties. At this time, the Claimant may exit the hearing area to return home. Usually in a few weeks a written decision will be submitted by the judge and be sent to the Claimant.
What information should a Claimant have available?
When in the hearing room, Claimant’s should always be prepared to speak in specifics about their case, condition, means of support, physician treatment, previous work, and everything related to their sickness. These are the obvious components of a case, but in addition to telling the story of a case, there are a number of procedural elements that are helpful to have available quickly. I have listed them, with brief explanations below:
1) Type of Benefits Sought – Knowing whether one is applying for SSI (Title XVI), SSDI (Title II) or both is extremely important, as their varying requirements alter what must be proved at hearing.
2) Date Last Insured – This date is significant because if a Claimant’s Onset Date occurs before this date, they are insured, if not, SSDI benefits are not available.
3) Prior Period of Disability – If the Claimant received disability previously, it is important to be able to produce dates, the reasons for the disability, and the benefit type received. A prior period can often strengthen a current case.
4) Alleged Onset Date – This is the date that the Claimant got so sick that they became disabled. This should be provable to a reasonable certainty via medical records.
5) Revised Onset Date – This is a revision to the date from which the Claimant claims disability.
6) Date Last Worked
7) Date Case Filed
8) Impairment Listings – If a Claimant wishes to declare that they met a listing, knowing which listing(s) they met is helpful. This is often supplied in a pre-hearing brief.
9) Grid Listings – If a Claimant claims that they are able to “grid out" under the Vocational Grids, then knowing and supplying which grid rule supports their claim is important.
10) Past Relevant Work + DOT Information – Knowing the DOT ratings of the past relevant work, and the work as performed by the Claimant is helpful when performing a grid analysis, and when evaluating vocational testimony.
In summary, the hearing is a distillation of the entire months or years long process of applying for disability benefits. This is a process that can be somewhat scary, and absolutely life-altering, but hopefully some of the uncertainty is now gone.