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.