What Happens At The Hearing

Posted on July 26th, 2018

These SSA hearings are reasonably informal. They are not civil or criminal. Many of the ALJ’s now call them inquisitorial. They are an opportunity for you to have a face to face meeting with decision-maker. He or she has the opportunity to talk to you, ask you questions, assess your demeanor and credibility, etc.. At all other levels of the process the decision is made by someone who is merely looking at your file, on a computer screen. Medicine is gray, not black and white. Unless you want to lose, you should virtually never waive your right to appear at a hearing and testify on your own behalf, the ALJ has no contempt power. He or she cannot put you or your representative in jail. Above all you should be polite and deferential to the ALJ as he or she has significant discretion to allow or deny your claim.

This hearing will not be Perry Mason, LA Law, Matlock, Judge Judy, or any lawyer show you have seen on TV or in the movies. For those of you who are too young to know who Perry Mason is, he was reasonably the most famous criminal lawyer ever on TV. He was played superbly by Raymond Burn. This is the formal criminal trial with the judge, jury an audience, newspapers, etc.. This was on TV in the 1950’s, in black and white for those of us old enough to remember black and white TV, not color. There were prosecuting attorneys’, witnesses, etc.. Your hearing will not be that. There are generally no rules of evidence, though nominally the Federal Rules of Evidence do apply. You will not generally hear objections for hearsay or similar reasons. The only persons present in the hearing room will be the ALJ, a hearing monitor that makes an audio record only of the hearing and types up the questions and your answers, you, and your representative. The hearing is private so no one can come in to hear your problems. Most ALJ’s use a vocational witness (VE) to testify about your prior work and to answer hypothetical questions about other work you might or might not be able to perform. Sometime the VE will present in person at the hearing and sometimes the VE will testify over the telephone. You or your representative will have the opportunity to ask questions of the VE, usually based on the limitations posed by your doctors. Usually, the ALJ’s questions to the VE reflect his or her opinion as to what kind of work you can still do, or what the state agency review doctors thought you could do at initial or reconsideration. Far less often, though some ALJ’s use these ME’s at all or most all of their hearings, the ALJ’s can call a Medical Expert (ME) to testify at the hearing. These doctors are supposed to provide a neutral and impartial medical opinion as to whether you satisfy SSA medical criteria. They are supposed to be an expert in the field of medicine most related to your impairments, but this is not always the case, especially if you have less commonly seen medical issues, these ME’s can be present in person at the hearing but more frequently testify by phone. SSA has trouble keeping a lot of these ME’s, especially in narrower specialties. You or your representative will also have the opportunity to ask questions of the ME.

Some ALJ’s will ask you their questions first and let your representative ask questions after. Some ALJ’s let your representative ask all of the questions. The ALJ’s have a duty to make duty you get a full and fair hearing. Whether you are or are not represented. Some ALJ’s ask the same questions whether you have a back or a mental problem. Some ALJ’s will skip the date of birth, how far did you go in school, etc., the basic questions, and go directly to your medical problems. It comes in handy to be familiar with a “typical” day and your medications. Some ALJ’s ask if you smoke, dink, take illegal drugs, or have been convicted of a felony. Do not be upset by these as they are not meant to be personal. There are certain statutory issues if substance abuse, felony convictions, etc., exist, and most ALJ’s are not sympathetic to smokers with heat and pulmonary problems as you are making yourself sicker, not better. They might also ask you about citizenship as this also can be an issue if not a citizen or not a legal resident.

Some lawyers like to meet their clients a few days before the hearing to discuss the above, and discuss possible questions and answers. As a matter of preference I don’t like to do this for 2 main reasons. Many of my clients have memory issues so what you might tell them days before the hearing is likely forgotten. I believe the issues I talk about are more likely to be remembered if heard in the hour or so before the hearing. I also don’t like to provide a set of what might be my questions or the ALJ’s, even though this is fairly easily to be done, but I don’t want my clients to have time to rehearse questions and answers. I think this is terribly counterproductive to one’s credibility. I want your testimony to be spontaneous and credible. There is absolutely no right or wrong way as to this preference.
Some representatives love to call lots of witnesses to testify on your behalf. Again, I believe this is a matter of style or preference, but I am very happy with my outcomes over 43 years. More often than not, if you have witnesses, the ALJ will sequester the witness outside of the hearing room while you testify. If so, the ALJ can play the “Newlywed Game”, asking you and the witness certain reasonably simple questions, like what was the las movie you went to, when was your last vacation, etc.. No matter how long you have been married, live with the witness, etc., I am reasonably willing to bet there are major differences in the testimony, hence someone is “lying”, therefore not credible, so also giving the ALJ a basis to discredit all of your testimony. Also, no matter how long married, etc., only you feel your pain, fatigue, etc.. The best a spouse, etc., can say is you look like you are in pain, but he or she cannot fee the pain. Again, reasonably, if the ALJ does not believe your testimony as to pain, fatigue, etc., the ALJ is not likely to believe it more just because you have one or more witnesses. Every ALJ has his or her own deliberative process before and after the hearing. They review the files and sometimes come to some degree of conclusion that you could be approved, denied, onset changed, etc.. Some ALJ’s make up their mind during the hearing, when they leave the hearing room to go to their office, or sometime later after they review the file and testimony in more detail. However they do this, you want them to have the most favorable impression about you as a client. You do not want to make the ALJ perturbed with you when he make that decision, whenever because you “wasted” his time with unnecessary witnessed, you made him/her get behind in the schedule. However, when you have a pure pain/credibility claim, with little or no objective findings in support, than all bets are off. That is not a very strong case when there are little or no objective findings so you have little to lose by having witnesses. Regardless, still be judicious in use of witnesses even in not so great cases.

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