What Happens at my Social Security Disability Hearing

John M. FitzGerald

Social Security Disability Hearings are meant to be non-adversarial proceedings. They are administrative, rather than judicial in nature. As such they are not held in "court," but in less formal office-like settings. Hearings in some locations are even held in hotels, or banks. The Administrative Law Judge (ALJ) presides over the hearing. He has an assistant or clerk with him who records the proceedings. The Judge may also call a medical expert (ME) and/or a vocational expert (VE).

You are directed into the hearing room by the assistant and are seated around a table. Your attorney and anyone you bring with you may also be present during the hearing, although any witnesses you bring are often asked to wait outside of the hearing room until the time comes for them to testify. The Judge goes through some preliminary matters. He tells you that you are present because you requested the hearing, that he has nothing to do with the decisions in your case in the past and is not bound by them, and is reviewing the case anew. He then swears you and the witnesses in.

Typically, the judge begins by asking you questions about your activities of daily living. The reason for this will be addressed in more detail here later. But for the most part, all of the questions posed to you are designed to determine whether what you do at home or on a daily basis can be translated into work. Thus, the question "do you vacuum" can be translated "can you push and pull repeatedly."

"Do you do laundry" can be translated "can you lift a laundry basket full of clothes off the ground." "Do you shop" can be translated "are you able to walk around a store and pick things off the shelves and put them in a cart." All of these activities say something about what abilities you retain in spite of your medical restrictions. Even an answer such as "I sit and watch TV all day" might be translated to mean that at least you can sit in a chair all day, so maybe you can sit in front of a computer, or a conveyor belt.

Throughout the course of the hearing, the questions are formulated to obtain the answers to five specific questions, known as the "Sequential Evaluation Process."

The Five Step Sequential Evaluation Process

The Social Security Administration (SSA) uses a five-step sequential evaluation process to determine whether a person is disabled. This process is used at initial application, at reconsideration, and at the hearing level. A person can win their case only at steps 3 or 5 of the process.

Five questions are asked, in order. If at any time during the analysis it is determined that a Claimant is not disabled, the evaluation stops - they do not advance to the next question.

1. Are you working? "Work" is defined as "substantial gainful activity." If the answer to this question is yes, the evaluation stops. You are not disabled. They do not go on to question two. If the answer to question 1 is no, they move on.

2. Do you have a severe impairment, expected to last at least 12 months or result in death? If the answer is no, they stop and you lose. If the answer is yes, the evaluation continues.

3. Does your impairment or combination of impairments meet or equal the listings that SSA maintains? This represents your first and earliest chance to win. SSA maintains a list of 14 bodily systems along with the medical-legal evidence required to adequately prove disability for their purposes. The standard is high, but if sufficient medical evidence exists, they stop the evaluation process and you win. If not, they move on to question 4.

As a practical matter, prior to asking question 4, SSA determines a Claimant's Residual Functional Capacity (RFC). This may be defined as what you are still able to do in spite of your limitations and restrictions. This is determined in large part by how you answer certain questions posed to you by the judge at hearing, and by SSA throughout the course of the application process. SSA asks you to complete certain forms describing your activities of daily living. They ask you how you spend your day, whether you are able to care for yourself, cook, clean, drive, walk etc.

They also glean this information from reports of your treating physicians, and from reports of consultative examiners (CE) who either read your records, perform a cursory examination of you in their presence, or both. Typically, the report of a CE will opine that you are able to lift 10 lbs. frequently and 20 lbs. occasionally, are able to stand, sit and walk for about 6 hours in 8, and have no limitations pushing and pulling, no postural limitations, and no environmental limitations. This is why it is important to have your physician complete the RFC questionnaires we provide to you and your doctors. SSA is required to give more weight to a treating physician than to one seen only for the purposes of rendering a written report.

4. Considering your RFC, are you able to return to your past relevant work (PRW)? At this point a vocational expert (VE) is often asked to render an opinion. Using a voluminous book called The Dictionary of Occupational Titles (DOT), the VE locates a description of your past work, along with the exertional and skill levels required to perform it. At the hearing level, the VE is a sworn, expert witness. The ALJ asks the expert for his opinion as to whether or not you are able to return to any of the jobs you've held in the last 15 years. If the answer to question 4 is yes, they stop and you lose. If the answer is no, they go on to question 5.

5. This is the second opportunity to win your case. Considering your age, education, and work experience, is there any other job that exists in significant numbers in the national economy that you are able to do? At this point, the burden of going forward with the evidence shifts to SSA to prove that such other jobs exist. The ALJ again turns to the VE to render an expert opinion. The DOT is an exhaustive listing of 50,000 occupations, each representing tens of thousands of jobs that exist in the national economy.

The ALJ poses a hypothetical question to the VE, basically describing you and your limitations. The reason it is hypothetical, rather than specifically about you, is because the question is not whether you can get any of these jobs, but whether a person like you could perform these jobs. The difference is that you may live in a rural area where such jobs do not exist, or that you would never actually be hired with a back problem as severe as yours, or that you would never actually apply for such a job. None of these things are considered relevant. This is a dis-ability hearing. The only relevant question is whether this hypothetical individual is able to perform the work.

The judge then asks the VE whether this hypothetical individual can do any of the jobs listed in the DOT. Almost invariably, the VE finds certain jobs that you can still do in spite of your impairments, such as thread spooler, tea leaf reader, nut bolt sorter, or wafer breaker. Your attorney then has the opportunity to cross-examine the expert, adding in any restrictions that the judge has left out of the hypothetical situation, to gradually get the expert to diminish the available job base until all are in agreement that you are disabled. So if the answer to question 5 is "no," congratulations, you win your case.

Of course, in most cases, the judge will not render a decision as you sit there, but will send you a written notice of decision. Often, though, a seasoned Social Security attorney can offer invaluable insights as to how the hearing went, and, based upon analysis of the above criteria, your likelihood of being awarded.