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Tag Archives for Disability hearings

Hearing Delays Result in Increased Danger to Judges

Recently, I represented a claimant afflicted with cancer who clearly met Social Security’s definition of disability – she had a medically determinable condition that precluded substantial gainful activity and her condition had lasted 12 consecutive months and was longstanding in nature.   The judge assigned to this case is a no-nonsense person who took no more than 5 minutes to conclude the hearing.

Angry claimant threatens Social Security judgeIn the past, this judge had the practice of announcing his favorable decisions – in other words, he would tell my client “I am going to find you disabled and award benefits.”   This time, however, he closed the case without saying anything.   After the recording equipment was turned off, he asked my client to leave the room but asked me to stay.  He then explained that “I have been told by the chief judge that I am no longer allowed to announce when I am going to grant a case.  I think this is a ridiculous policy as your client and thousands like her have been waiting for years, but I can no longer announce my decisions.”

Although my judge did not explain the reasons for this change in policy, I suspect it has to do with the nature of Social Security hearings.  The Social Security Administration is an agency that is part of the executive branch of government, rather than the judicial branch.  As such, the procedures, including rules of evidence and trial procedures are not the same as the procedures used in judicial proceedings that you might find in a state or federal court.

In state and federal courts, you find baliffs and court personnel who provide security to judges.  In Social Security hearings, there is no formal security other than a sole security officer who performs a brief security check of claimants and witnesses when they enter the hearing office waiting room. Continue reading →

What Does it Mean When a Judge Wants to Change Your Onset Date

As I noted this past November, I am starting to see more instances when a judge will want to change the “onset date” for my client’s disability.  What does this mean and should you be concerned?

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony. Continue reading →

Why You Should Hate the Idea of Applying for Disability Beneifts

“I am disabled and cannot work.”   Although this is a very short sentence, it’s implications are quite profound.  For many of my clients the decision to apply for benefits and assert in writing and verbally that they can no longer earn a living is perhaps the most psychologically difficult part of the disability process.

As humans, we are programmed to believe that things will get better.  For many people, the decision to file for disability is a kind of defeat – a recognition that their physical or mental condition probably won’t improve.

In my view, clients who hate the concept of disability are my best clients.  When you walk into that hearing room, you should have the attitude that “I don’t want to be here, and I am only here because I have no other choice.”   Judges pick up on body langauge, verbal and non-verbal cues.  If your judge senses an “attitude of entitlement” your chances for a favorable decision go way down.

Whenever possible, include in your testimony statements reflecting your desire to return to productivity.   Talk about the fulfillment that work brought you.  Discuss the financial hardship that not working has brought upon your family.  Speak about hobbies and activities that you can no longer do because of your medical condition.

Remember – your job at a hearing is to paint a picture – and the picture you want to paint should reflect a person who is a fighter, not a “taker.”

Avoid statements like “no one would hire me,” or “I can’t do anything since I became disabled.”   Your job is to provide the judge with an accurate description of your symptoms, not to make conclusions about your work capacity.   The work capacity determination is the judge’ s job, not yours.

Disability hearings often turn on the claimant’ s credibility – if the judge finds you believeable and a truthful witness, you are most likely headed for a positive result.

Is Notice of a Video Hearing by an Out-of-State-Judge a Good or Bad Thing?

What does it mean if you hear from Social Security that your case file is being sent to an out-of-state judge for a hearing?  Is that good news or bad news?  A reader named Vicki asked just that:

my chart was sent elsewhere for a video hearing. does that mean they really think that i am not disabled?  my chart is being sent to another state. i am unable to access the grid rules. thank you, vicki

Jonathan Ginsberg’s response: Vicki, I would not read anything at all into learning that SSA has sent your file to an out-of-state judge for a hearing.  Over the past few years, Social Security has undertaken several innovative steps to address the hearing backlog that exists in hearing offices across the nation.   Perhaps the most visible of these programs has been the introduction of video hearings to the decision making process.

In a video hearing, you and your lawyer appear at your local hearing office.  The judge, who may be located hundreds or thousands of miles away, appears by video camera.  The hearing reporter and expert witnesses may be local or they may be with the judge.   You can see the judge on a large television screen and he can see you.

In addition to sending files to judges in hearing offices elsewhere in the country, SSA has set up a national video hearing center in Virginia.   I suspect that once SSA gets the current backlog reduced down to manageable proportions, they will send files to the national center rather than to judges in various ODAR hearing offices.  For right now, however, video hearings may be held before judges located in random hearing offices or they may be held in the national hearing center.

Personally, I have had good results with the video hearings I have tried.  At first I was a little concerned about the idea of appearing before a judge who could not interact with my client in person.  However, that has not been a problem.  I don’t know what criteria are being used to select the judges who get the video hearings but so far, the judges I have seen have been reasonable.

Vicki’s final question was about the grid rules, which are accessible by clicking on the link.

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