How to Prepare for a Social Security Disability Hearing and What To Expect
Posted on: September 30th, 2019 by Richard Cuthbert
1. Get a Social Security Disability Lawyer
If you need help with your social security disability claim from a Social Security Disability lawyer in Petersburg, Richmond or surrounding Virginia areas, schedule a free consultation now. Your lawyer will help determine your best claim arguments, what evidence you need, where to get your evidence, and how to organize it.
Receiving disability benefits is hard, especially in the greater Richmond area. You might hear stories about folks who aren’t disabled but are receiving Social Security Income (SSI) disability checks, but believe me, there are no easy ways to get disability benefits today. In fact, even well deserving claimants with written support from 1-2 treating medical professionals, still have a hard time getting social security disability benefits.
Legal representation generally does not cost you anything up front. In fact, most Social Security Disability Attorneys only charge you if they win your claim. Most of the time the lawyer’s fees are based on a percentage of the disability benefits they are able to recover for you. Those disability checks are cut directly from the Social Security Administration, so there is no reason not to have an attorney.
When looking for a lawyer to handle your claim, look for an attorney who is available to actually meet you face to face to help you prepare your case. It is not advisable to be meeting your attorney for the first time 30 minutes before the social security disability hearing.
2. Gather the Evidence
First and foremost, obtain copies of your medical records. Obtaining and submitting your medical records is key to presenting your disability case to the Social Security Administration. Administrative Law Judges are bound by the facts, in this case medical records meaning that even if the judge believes your testimony, they need the medical records to support your testimony. Your case is only as good as your evidence (medical records).
3. Create a Paper Trail
This goes hand in hand with “Gathering the Evidence.” Creating a paper trail is the act of getting treated by medical professionals to generate medical records needed to support your disability claim. In order to create a medical record, you must seek treatment by medical professionals. If you do not have a sufficient medical record to corroborate your disability claim, you will not win your case.
Therefore, when you are in pain and hurting, see a doctor. Follow up on the doctor’s treatment recommendations. If you have multiple disabling conditions, do not suffer in silence and see multiple treating medical professionals for those conditions. As far as Social Security is concerned, if you are not getting medically treated, you are not hurting.
I have seen too often at social security disability hearings and in disability denial letters: the judge will write that the claimant has received infrequent or conservative care and therefore his or her condition is not as severe as is claimed. Therefore, get medical treatment when you are hurting or experiencing problems so you can avoid falling into this category and being denied disability benefits.
Tip for your medical visits: Be vocal when you receive medical treatment. Tell your medical professionals about all of the pain you’re experiencing and any problems even if you are visiting a specialist for a specific issue. For example, you do not want your records from your kidney doctor to state that you did not complain of pain at the appointment when in reality you suffer from chronic back pain.
If you are talking yourself out of going to see a doctor because of limited or no insurance coverage, there are programs to help. Don’t let insurance stop you from being treated, VCU has a program offering treatment to folks with limited means and the VCU care is excellent. Additionally, Virginia recently expanded Medicaid. Check to see if you are eligible for this program if you want medical treatment but may not have the means or insurance coverage.
4. Tell the Truth
Telling the truth is an easy tip, but it may also be the most important one. I cannot emphasize the importance of honesty enough to my clients in this process. Not only is it morally the right thing to do, but you will lose your case immediately if the judge suspects you are lying, and they are good at figuring that out.
Exaggerating is just as bad, so please don’t exaggerate the pain or problems you’re experiencing. Here is a good example:
Q. Judge asks you how long can you sit for a period of time before you need to stand up or change positions?
A. You respond, I can sit for about 15 minutes before the pain gets so bad that I have to stand up or lie down.
Meanwhile, the hearing lasts 45 minutes and you have been sitting the entire time. Even if you were sitting in pain the whole time, the judge will think you exaggerated your symptoms and you will lose your case.
Tip: If you are sitting in the hearing and you get stiff and uncomfortable, ask the judge if you can stand up. The judge will say yes.
If a judge gets the sense that you are honest, you have a much better chance of winning your claim.
5. Focus on Winning Claim Arguments
There are three general types of arguments to make at your Social Security Disability hearing: A. The Grids; B. The Listings; and C. Inability to Perform Substantial Gainful Activity (SGA).
A. SSA Grid Rules
The Social Security Administration uses a grid of rules that sets out when an applicant is disabled, based on age, functional capacity (sedentary, light, medium, or heavy work), education level, and work history and skills.
The most common application of the grids to a favorable disability decision occurs when the claimant is over 50 years old, has a history of work involving standing and walking 6+ hours per day, and is no longer capable of standing or walking 6 hours a day. Under this scenario, the claimant would generally “grid out” at sedentary (sit down work). Meaning that the Social Security Administration would find you disabled even if you could hypothetical do an unrelated sit down job. Under this scenario, the Social Security Administration considers the 50+ year old worker to be too old to learn “new tricks” or perform a new and different job.
There are other applications of the grids that result in favorable Social Security decisions, but those applications are infrequent.
Tip: If you are over 50 with a past history of light work and can no longer do a job requiring mostly standing and walking, focus on your mobility limitations.
B. SSA Disability Listings
The Social Security Listings set out specific criteria that, if met, direct a favorable disability decision.
The Listings cover things like seizure disorders, heart disorders, mental disorders, immune system disorders, neurological disorders, musculoskeletal disorders, and so on.
There’s a catch. It is not a medical professional who determines if you meet a Social Security Listing, it is the Judge. Even if your treating physician(s) finds that you medically meet a Social Security Listing, a judge may dismiss the physician’s opinions. If this seems unfair, often times it is. Unfortunately this is the reality we live in.
Tip: Do a Google search for the Social Security Listing of Impairments. Check to see if you have an impairment covered by the Listings. If you do, print it out. Take it to your treating physician. Ask your physician to write a letter to Social Security addressing whether you meet the Listing requirements.
C. Inability to Perform Substantial Gainful Activity (SGA)
Inability to Perform Substantial Gainful Activity is Social Security speak for “can you hold a full time job?”
This is where it is most important for you to focus on your argument. Remember, you have the burden of proof to convince Social Security that you are disabled. There are several ways to go about proving that you cannot perform Substantial Gainful Activity (SGA). Here are the main ways:
a. Prove that you will miss 2+ days of work each month.
b. Prove that you will be off task 15% or more of the time.
c. Prove that you will need special allowances or special supervision.
These are general arguments and there are certainly more and certainly exceptions, but this is a good place to start and where the majority of winning arguments are made.
Let’s take them one at a time:
Missing 2+ days of work per month on average – How do you prove this? You can show that you have bad days that prevent you from being able to physically leave the house, including extreme depression or extreme pain. You can offer medical records that show you spend more than 2 days per month receiving medical treatment.
Being off task 15% or more of the time – This simply means that you will not be able to focus on your job. You can show this through your use of medications (if they impair your ability to focus). You can show this through psychological testing results or through testimony from your treating physician.
Needing special allowances or supervision – Generally, if an employee needs special supervision or accommodations on an ongoing basis, that person is not employable. For example, you may need additional rest breaks that are not offered in the competitive workplace. You may need special supervision or reminders on an ongoing basis or you may need a more flexible work schedule. To prove these arguments, you will need your treating physician’s support and potentially support from more than one treating physician.
Winning a Social Security Disability Claim can be hard, frustrating, and long. Hang in there; focus on your winning arguments. Please do not hesitate to reach out to us here at Cuthbert Law Offices to see if we can help you with your disability claim.