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What happens at a Hearing with an Administrative Law Judge?

Many people with Social Security Disability claims, either for Disability Insurance benefits (DIB) or Supplemental Security Income (“SSI”), or both, apply for benefits and are turned down. After the claim is initially denied a request for reconsideration may be filed and must be filed within sixty days of receiving the initial denial notice. At both the initial and reconsideration level there is no opportunity to meet with the person or people who make the decision on the claim.

After a claim is denied at the reconsideration level, however, a Request for Hearing can be filed, and must be filed within sixty days of receiving the reconsideration notice, unless there is “good cause” for the delay. At the hearing, the individual has the opportunity to talk with the Administrative Law Judge, (“the ALJ”); this is the only opportunity in the disability process to speak with an actual decision-maker, and thus it is an important opportunity to present one’s case for being eligible for benefits.

The hearing procedure is managed by the ALJ; not all hearings are the same, and in fact no two hearings are the same, as every individual’s situation is unique in the details. Nonetheless, the general scheme of the hearing is the same in most hearings.

Also, while in the past, prior to COVID-19, hearings were primarily held in person, before the ALJ, most hearings are now conducted via telephone. The individuals on the phone are generally the court reporter, who makes a recording of the hearing, the ALJ, a vocational expert, the individual claiming benefits (the claimant), and the claimant’s representative.

Generally, no one else is to be on the phone, or even in the room with the claimant as each individual’s testimony is expected to be his or her own, and the ALJ will usually go over those ground rules at the outset of the hearing. Thus, one should be prepared to answer questions from the ALJ and his or her representative, if the claimant has a representative. Because the issues in a Social Security disability claim are complex, and vary quite a bit from person to person, having experienced, professional representation greatly increases the odds of success.

What is the ALJ Hearing About?

First, it is important to determine what the hearing is, and is not, about. Most cases are won or lost before the hearing begins. That is because the Social Security Administration’s definition of “disability” has a lot of parts to it, and quite a few regulations detailing the specific requirements an individual has to meet in order to qualify.

It is important to understand that the claimant has the burden of proof in a disability case. That is, it is not the duty of the Social Security Administration (“SSA”) to prove a person qualifies for benefits – the claimant has to prove that all of the criteria for eligibility are met. SSA makes the determination as to whether all of the criteria are met based upon the evidence, most of which is documentary.

If an individual is found to not be disabled, it doesn’t necessarily mean the person is not disabled – it just means that the claimant didn’t prove the case. And because most of the evidence is in documentary form and must be submitted at least five business days in advance of a hearing, in most cases, by the day of the hearing, the issues in the case have either been addressed by the documents, or the documentary evidence required is not in the file, which will lead to a denial regardless of what a person says at the hearing.

Evidence That is Presented at an ALJ Hearing

SSA uses a five-step process, called the sequential evaluation process, to determine whether a person qualifies for benefits. If a claimant fails at one of the first four steps, the claim is denied at that level, without going through any of the remaining steps. Because each of the five steps has its own criteria, care must be taken to make sure each step is properly documented, to the extent possible.

At the hearing level, if the claim is properly prepared, the ALJ should have a lot of additional evidence that was not available at the initial and reconsideration levels. Therefore, due to the additional documentation, the claimant has the opportunity to address, through documentary evidence, the issues that were an obstacle to qualifying for benefits at the lower level. Additionally, the testimony of the claimant is often quite helpful in explaining the nature and extent of the individual’s impairments, and how those impairments affect the ability to sustain full time employment.

The gist of SSA’s definition of disability, and the focus of the ALJ in deciding the case, is whether the evidence establishes that the claimant’s physical, mental, or both, impairments are of such severity as to prevent the individual from performing all types of substantial gainful activity for a continuous period of at least 12 consecutive months.

Either their Past Relevant Work or any other work which exists in significant numbers in the national economy, considering an individual with the vocational profile of the claimant, as established by the evidence. While there are many regulations that address the specifics, this is the standard for qualifying for disability benefits.

Work and Financial Requirements for SSD and SSI Claims

A threshold inquiry in a DIB case is whether the individual is insured, for disability purposes. That, in general, means has the claimant worked at least five years out of the ten-year period of time before they claim to have become disabled. Whether a person is insured, for disability purposes, is determined by one’s earnings record. SSA obtains earnings information from the IRS which it utilizes in making the determination of whether a person is insured.

If an individual has worked “under the table”, and not reported their income to the IRS, SSA may determine that the individual is not insured, and thus not eligible for benefits regardless of their medical condition.

Another situation is when an individual last worked over five years prior to filing. In such a case, while the person was insured at a point in the past, their insured status expired, and they were not insured at the time they became disabled. Again, without insured status, the individual will not qualify for disability insurance benefits, as a claimant must be insured at the time the disability is alleged to have occurred.

For SSI claims, there is no insured status requirement. In SSI claims, an individual has to meet certain financial criteria – that is, the household can not have “excessive” income or resources. In an SSI claim, excess income or resources can prevent an individual from qualifying, regardless of the medical conditions preventing them from working.

Generally, the ALJ will ask some questions relating to the claimant’s address, and have the SSN confirmed as a means of making sure that the person on the phone is really the claimant, and also to confirm that the address on file is the correct mailing address to which the decision should be mailed. Sometimes additional questions, such as the name of a recent medical provider, is asked as a means of further confirming the person on the phone is the claimant.

Vocational Analysis for Determining Disability

The claimant is generally then sworn in, to testify under oath regarding the truth of the answers provided during the hearing. The individual is generally asked about their age, date of birth, highest level of education completed, and whether the person has received any vocational training of any kind.

The significant thing at this point is that the rules for determining disability are best understood as a vocational analysis. That is, the younger an individual is, and the better educated an individual is, the easier it is for that person to learn a new job or skill. Consequently, SSA has rules that make it somewhat easier to qualify for individuals who are over the age of 50, and easier still for individuals over the age of 55.

A person with more education has a somewhat more difficult time qualifying for disability than an individual of the same education with less education. The ALJ then will normally go through the individual’s work history for the preceding 15 years. The only important information at this point is a brief description of the claimant’s job duties – such as how much standing, walking, lifting and carrying were involved, whether the job was performed full time or part time, and how long the job was performed.

The vocational expert who testifies following the claimant’s testimony has to classify the work experience based on the Department of Labor’s publications. Information generally describing the job is usually sufficient. This is not the time to discuss the limitations – the Judge just needs to have a good understanding of the claimant’s work history.

This is important in determining whether the individual has the ability to return to any of their past relevant work, and also whether the individual has acquired any skills from their past employment that could be utilized in other jobs. Generally, only jobs that have been performed on a full-time basis in the preceding 15 years are considered, as jobs change over time, and any skills obtained from jobs performed more than 15 years ago are likely no relevant to the way jobs are currently performed.

Examining a Claimant’s Ability to Work

If an individual is insured for benefits, in DIB cases, or not precluded from qualifying due to excess income or resources in SSI cases, the first step of the process addresses whether a claimant has engaged in substantial gainful activity since the alleged onset of disability. In order to qualify for disability, one must be unable to engage in full time employment.

As a starting point, the ALJ will generally ask questions at the beginning of the hearing about whether the claimant is presently working, and when they last worked. If an individual is presently employed full time, they do not qualify for benefits, although sometimes a person may qualify for a “closed period” of benefits, if they had a period of at least 12 consecutive months for which period of time it can be established that they were unable to work.

A person’s testimony regarding their work may also indicate whether the earnings information obtained from the IRS is up to date. Also, payment of short-term disability benefits frequently winds up being reported as wages, so it is important to describe any payments received after the last date employed, such as vacation pay, sick time, disability payments, or any other payment of benefits.

This enables the Judge to address in the decision any posted earnings after the onset of disability – a failure to explain what appears to be the payment of wages can cause a favorable decision made by the Judge to be sent back for further proceedings, thus substantially delaying or even preventing the individual from receiving benefits.

Does the Claimant Have a Qualifying Disability?

Then, at this point of the hearing, the hearing gets to the “disability” part. The Judge may ask a question such as “tell me what conditions you have that make it impossible for you to work now”. The claimant should then discuss their specific medically documented problems and how they impact upon the ability to engage in such activities as sitting, standing, walking, lifting, carrying, or otherwise affecting the ability to work.
If a problem does not impact the ability to work on a full-time basis, the Judge doesn’t need to hear about it. Additionally, the Judge can only consider medically documented problems. If a claimant has medical problems, but no treatment, the regulations do not allow the ALJ to consider those problems.

If there is treatment, but there is no diagnosis but just a review of a person’s complaints, that is not enough for the Judge to find a medically determinable medical impairment. The regulations require, to the extent possible, objective findings such as x-rays, MRIs, or other testing to establish the existence of a medical condition that could cause the specific limitations claimed.

The ALJ is not allowed under the regulations to find a person disabled unless they have a documented medical condition, confirmed by objective medical evidence. This is a problem in many cases, as working people often have their insurance through their employment, and when their employment ends, so does their insurance coverage.

Without insurance, medical treatment is difficult to obtain. Thus, while individuals will frequently try to tell a Judge that they have no medical treatment because of a lack of insurance, that explanation does them no good. Judges hear that situation from a great many claimants, but most will somehow find a way to get at least some medical treatment.

At any rate, if there is no documented evidence of a medical condition that would have the symptoms claimed, the ALJ is not allowed to consider testimony about the undocumented medical condition, or find any limitations in the ability to work, as it relates to undocumented medical conditions.

Regardless of how sincerely the individual describes the problems, the ALJ cannot find any limitations unless there is medical evidence documenting that the medical condition exists, and the medical condition would reasonably be expected to cause the symptoms described. Thus, again, the documentation is critical in determining what symptoms can be considered.

Symptoms and Limitations Caused by the Claimant’s Medical Condition

After the various medical conditions are identified by the claimant, the symptoms arising from those medical conditions need to be described by the claimant. The symptoms should be described in vocational terms – that is, how does it affect the individual’s ability to sit, stand, walk, lift, carry, or concentrate, deal with co-workers, the general public, etc.

The specific restrictions are important, because the ALJ will generally need to include the symptoms described in one or more questions to the Vocational Expert. After the specific limitations are described by the claimant, the individual’s daily activities are discussed. This is the opportunity to illustrate through the limited daily activities, how the symptoms limit the claimant’s ability to engage in full time work.

The claimant will be asked about whether he or she drives, grocery shops, sweeps, mops, cuts grass, goes to church or other social activities, and in general describe how the symptoms impact daily activities. The description of limitations illustrates the obstacles an individual would have in either returning to their past relevant work or any other work.

After describing their functional limitations and illustrating those limitations through the limitations in daily activities, the claimant’s part of the testimony generally concludes.

Vocational Expert (VE) Testimony

At this point in the hearing, the judge takes testimony from the Vocational Expert (“VE”). The VE, based upon a review of the vocational portions of the file prior to the hearing as well as the claimant’s testimony, classifies all of the individual’s jobs within the prior 15 years, describing the physical level of exertion as well as the skill required, and the length of time needed to learn the job.

As a general rule, after obtaining a description of the individual’s Past Relevant Work, the Judge will pose one or more hypothetical questions to the VE. The hypothetical individual described will be of the claimant’s age and education and have the claimant’s work history.
The judge then describes the functional limitations the hypothetical individual has, both physically and mentally. The VE is then asked whether such a hypothetical individual is able to perform the claimant’s past relevant work. If the VE indicates the past relevant work could not be performed, the ALJ will typically then ask about whether the individual could perform other jobs which exist in significant numbers in the national economy.

The VE’s responses to these questions are important parts of the decision. If the VE testifies that the hypothetical individual can not perform either their past relevant work or any other work existing in significant numbers in the national economy, that testimony is crucial evidence the ALJ considers in determining whether the individual qualifies for benefits.

The important part to understand is that the VE only answers the hypothetical questions asked. The VE does not determine whether a person is disabled; the ALJ does that. The person’s testimony at the hearing, and the medical evidence regarding the person’s physical and mental limitations, provide the information in the ALJ’s questions to the VE.

No Partial Disability Benefits Through the SSA

It is important to recognize that SSA doesn’t provide partial disability benefits. Either a person is 100% disabled, or they are not disabled under SSA’s regulations. Proving that a person is unable to do their past work is not enough to qualify for benefits – if there are full time jobs available in the national economy the individual can perform, the individual does not qualify for benefits.

Also, the availability of jobs in the local economy, or lack thereof, does not matter under the regulations, as SSA regulations require the Judge to consider all full-time jobs in the national economy.

Whether an individual thinks they qualify, or thinks they should qualify, is not relevant to the Judge. Also, whether a person needs the benefits, or doesn’t need the benefits is not relevant – either a person is qualified to receive the benefits, or they are not.

Whether a person has continued to work while they believed themselves disabled also is usually not important, except that the Judge can only find a person to be disabled when the claimant has stopped working. If an individual was able to work with a serious medical condition in the past, what has changed so that they are no longer able to continue working?

In that way, a claimant’s testimony which is intended to be about overcoming difficulty frequently turns into testimony that the individual has been able to work in the past with the same problems that are now claimed to be disabling; the testimony contradicts the point the claimant should be trying to make.

This illustrates an important point –when a person goes off on a tangent about something that was not asked, it is frequently self-defeating. Many claimants unknowingly undermine their own cases in their testimony. It is important to simply answer the question truthfully, and then stop.

If a claimant is talking a lot, the case is probably going a lot worse than they think. Most hearings are conducted in 45 minutes or less and are quite often completed within 30 minutes.

Most Important Evidence in an ALJ Hearing

The crucial part of the disability case is the medical evidence. Medical opinions regarding a claimant’s diagnoses from treating and examining sources can be helpful, but much more important are whether any such opinions are supported by the medical evidence, including any objective testing, and the consistency of any such opinions with any other medical opinions, as well as the other medical and other evidence in the file.

As referenced in the beginning, the key is the medical and other documentary evidence, and a lack of evidence will generally not be cured by testimony at the hearing, no matter how sincerely it is given. As the disability process is quite complex, having experienced legal representation is most often the difference between being found disabled and losing the case.

Answers to Questions about Social Security Disability

1. How can I tell if I am disabled enough to apply for Social Security Disability benefits?

Social Security regulations make it easier to be found disabled as you get older. For individuals who are under the age of 50, the standards are very high, and the medical evidence needs to be fairly compelling that the symptoms from your diagnosed medical conditions preclude you from engaging in full time employment. It becomes easier to qualify for more people at age 50, as the Social Security Administration’s rules recognize the greater difficulty older people have in adjusting to new work situations. The rules become more relaxed for most people at age 55, and even more people at age 60. For individuals over the age of 55, the biggest problem is often whether they have the ability to return to any work they have done on a full time basis within the last fifteen years. If you’re over age 55 and you cannot do any job you have done in the past 15 years, you should definitely apply. If you’re over age 50 and have a severe impairment that keeps you from doing all but the easiest jobs, you should apply.

If you’re a younger person, you don’t have to be bedridden in order to be found disabled. But you need more compelling medical evidence. The rules require that you produce medical evidence supporting your disabilities, and the more medical evidence you can provide, especially objective test results such as MRI or x-ray reports, the better your chances are. If you are under the age of 50, you must provide medical documentation of conditions that are so severe that they keep you from being able to do any of the work you have done within the last fifteen years, and also, that keep you from being able to do any other work on a full time basis.

It is important to note that being unable to work and being found “disabled” by the Social Security Administration (SSA) are two entirely different things. The Social Security Administration does not consider the area in which you live – if there are jobs that exist in the nation you can perform on a full-time basis, the fact that these jobs are not near where you live does not matter. Also, the rules don’t consider factors such as you not being able to drive to work, or you don’t have transportation to get to work.

Also, even though your health may keep you from being able to work, unless your condition is medically documented, you most likely will not be found disabled. Many people lose their insurance when they become unable to continue with their jobs. That poses a significant problem in providing documentary evidence about the medical treatment. Sometimes, the Social Security Administration will order a medical exam, but you generally should not rely on the Social Security Administration’s medical personnel to prove the claim for you. The rules are clear that it is up to the individual claiming to be disabled to PROVE that they qualify for disability benefits.

If you really are unable to work, and have medical treatment to support your claim, you should apply for disability benefits. If you are denied, you should file a request for reconsideration, and then request a hearing before an administrative law judge. If you have applied, and your claim is denied, a lawyer with experience handling disability cases may be able to help you to figure out a way to win your case at the reconsideration or hearing before an Administrative Law Judge. Statistics show that people who are represented have a much greater chance of winning before a Judge. The sooner you get legal representation, the better your odds are of success because your representative will know the kinds of evidence that are needed to prove you qualify.

If the claim is denied by an Administrative Law Judge, that decision can be appealed to the next level – the Appeals Council. The odds of winning at the Appeals Council are very slim. Generally, if you have not already hired an attorney to assist you before the Administrative Law Judge, an attorney will not want to become involved with an appeal to the Appeals Council. The rules provide a presumption that the Administrative Law Judge was in the best position to evaluate the claim, and the Appeals Council only overturns the judge’s decision when there is clear evidence that the rules for evaluating the evidence were not followed.

2. How do I apply for Social Security disability or SSI benefits?

The Social Security Administration (SSA) offers three ways for you to apply for Social Security disability benefits:

  • By telephone.
  • In person at a local Social Security office. This is not available at this time.
  • By the Internet.

If you want to complete an application for SSI or Social Security disability by telephone, you must telephone SSA at 1-800-772-1213. If you want to apply by phone, you will be given a date and an approximate time to expect a phone call from someone at the Social Security office who will take your application over the phone. The application will then be mailed to you for your signature.

If you want to use the Internet to apply, go to . If you want to apply for SSA’s other disability program — Supplemental Security Income (SSI) –you cannot complete an SSI application online but you can complete one of the necessary supporting documents, the Adult Disability and Work History Report, on the Internet.

3. Do you have any advice about applying for disability benefits?

Yes.

  • Give SSA all the information it asks for in a straightforward way.
  • Be truthful. Do not exaggerate or minimize your disability.
  • Get representation if your claim is denied initially. Although you can request further appeals, unless you provide some different information, your claim will probably turn out the same way at reconsideration or with the Administrative Law Judge. If your claim is denied, parts of the claim are not being properly documented, but if you don’t understand the rules, it will be hard for you to fix it.
  • When you complete the Disability Report, a form that SSA requests completed at the time the application is submitted, explain how your medical impairments keeps you from working. Your explanation must show why you cannot do any job you have done in the past 15 years and also address why are unable to do other work.

4. What happens if I am denied benefits and I do not appeal within 60 days?

You’ll have to start over with a new application. Starting over is different from an appeal. It means that you will lose any back benefits you would have been entitled to receive under the first application. There is a financial cost to missing deadlines, as well as the loss of the time put into the first claim — your new claim will start at the very beginning. Additionally, the evidence used to deny your claim the first time will still be considered on your second claim, so your odds of winning on the second claim are actually worse. It is very important to appeal all denials within 60 days. It’s better if you appeal right away – there is no advantage to waiting sixty days to do something that can be done right away. The more you delay, the slower your case will be processed in a system that is already a fairly slow bureaucracy. The faster you get your appeals filed, the quicker you can get to the hearing stage, which is where the best chances of success are.

5. How do I appeal?

Your denial letter will tell you about appealing. The first appeal is called a “reconsideration.” You must request reconsideration and then, after the reconsideration is denied, you must request a hearing within the 60-day time limit.

6. What are the two biggest mistakes people make when trying to get disability benefits?

  1.  Failing to appeal. More than half of the people whose applications are denied fail to appeal. Many people who are denied on reconsideration fail to request a hearing. If you are genuinely unable to work full time, you should appeal.
  2.  Not getting appropriate medical care. Some people with long-term chronic medical problems feel that they have not been helped much by doctors. They may stop going for treatment. Or there is not much money to pay for doctor visits. Failing to get medical treatment is a mistake. The single most part of your disability claim is your medical treatment records. The better your medical evidence, the stronger your case for disability is.

7. Since medical evidence is so important, should I have my doctor write a letter to the Social Security Administration and should I gather medical records and send them to SSA?

SSA will gather the medical records, so you don’t have to do that. Whether you should ask your doctor to write a letter is a hard question. A few people win their cases by having their doctors write letters. You can try this if you want to. The problem is that the medical-legal issues are so complicated in most disability cases that a doctor may inadvertently give the wrong impression. Thus, obtaining medical reports may be something best left for a lawyer to do.

8. How much do lawyers usually charge?

Most lawyers represent people on Social Security Disability or SSI claims on a “contingent fee,” basis. This means the lawyer is paid a fee only if you win your case. The usual fee is 25% (one-quarter) of any back benefits you get, up to a maximum limit set by SSA. The maximum fee which can be charged for claims handed before the Social Security Administration is $6,000. Most times, however, the fee is much less than $6000, because the fee is the lower of $6,000 or 25% of your back benefits. The fee comes from those benefits that build up by the time you are found disabled and benefits are paid. No fee comes out of current monthly benefits.

Although the fee will not normally exceed the maximum fee of $6,000, if your lawyer has to appeal your claim beyond a decision by an administrative law Judge, your fee agreement will still be limited to no more than 25% of your back benefits – so unless you win, there is still no fee.

In addition to the fee, many attorneys expect you to reimburse them for the expenses of gathering medical records, obtaining medical opinion letters, etc.