Posted by TENA/DIAMOND on 3/23/2009, 9:38 pm, in reply to "Tips for Winning a Fibromyalgia or Chronic Fatigue Syndrome Disability Case#1"
What Actually Happens at a Social Security Disability Hearing?
by Jonathan Ginsberg, Attorney - Atlanta, Georgia*
You have waited a year or longer. The big day is finally here. Your Social Security hearing is tomorrow. What is going to happen? Who will be there? What does the Courtroom look like? Will you be asked a lot of questions?
Your hearing is your best chance for winning disability benefits. Prior to the hearing, your case was evaluated by a State Agency Adjudicator - a government employee whom you did not meet face to face and whose evaluation of your case was based on your medical records only. And, since your doctor’s reports did not contain certain medical terms, nor did they discuss specific vocational restrictions, your case was denied. For more information about the initial application and the reconsideration stage of your case, go to http://www.4socialsecuritydisability.com/Appeal_process.htm .
At a hearing, you will have the opportunity to tell your story to an experienced Administrative Law Judge. Your Judge is not bound by any of the findings made by the State Agency Adjudicator. In other words, the Judge will look at your case with a fresh pair of eyes and he or she will have the chance to meet you and look you over.
While it is normal for you to be nervous, you should realize that most Judges want to make a fair decision and that you will be treated with dignity and respect. It is important, however, to know what to expect.
What does the Hearing Room look like?
The hearing room in a Social Security case is much different than traditional courtrooms you may have seen live or on TV.
• Your hearing room will be small and informal.
• The hearing will be held around a conference table.
• You will also notice an audio tape recorder and microphones used to tape the hearing.
• Unlike regular court cases, Social Security hearings are not open to the public - therefore, there are no seats for spectators.
• Most people like the small, informal setting. This type of set-up should help you relax and establish a dialog with the judge.
Who will be there?
The participants at a hearing will be the Judge, a hearing assistant (who operates the tape machine), you, your lawyer, and possible one or more expert witnesses.
Why will expert witnesses be present at my hearing?
• Social Security Judges use expert witnesses to help them better understand the issues in your case.
• Expert witnesses are not there to hurt you or to help you.
• Expert witnesses come from a panel of experts selected by Social Security.
• When the Judge decides to call an expert witness, he cannot ask for a particular witness - instead, a member of the panel is assigned randomly.
The Vocational Expert
In most cases, the Judge will call a "Vocational Expert" (also called a VE).
• The VE may be a job placement professional, a professor, or a vocational rehab counselor.
• The VE’s job is to classify your past work and describe for the judge the skill level of your past work (unskilled, semi-skilled or skilled) along with the exertional level called for in this job (sedentary/sit-down, light, medium, or heavy).
• The judge needs this information to determine whether your claimed impairment would prevent you from returning to your past work and whether you have acquired any skills that would transfer to less demanding work.
• Vocational experts will be familiar with a publication called the Directory of Occupational Titles - which is a book published by the U.S. Department of Labor that describes the physical and mental requirements of all jobs that exist in the United States.
Examples of Vocational Expert testimony
The Judge will use the VE to "translate" your medical problems into work limitations. After listening to your testimony, the Judge will turn to the Vocational Expert and pose one or more questions about your job capacity. For example, in a recent hearing the Judge posed the following questions to the VE:
1. "Mr. VE, assume I find that the claimant is 48 years old, with a high school education and has past work as a machine operator, as a shift supervisor at a convenience store and as a shift supervisor at a retail store. Further assume that I find that the claimant has been diagnosed with fibromyalgia and has a moderate level of pain all the time. Further assume that the claimant can stand for no more than 20 minutes at a time, and that standing can constitute no more than 2 hours total during a work day. Sitting is unlimited, although the claimant needs a "sit/stand" option. Could this claimant return to her past work? Could she do any other work?
2. "Mr. VE, assume the same limitations set out in question 1, but add the following limitations. Assume that I find that the claimant’s testimony is credible in her statement that her pain level rises to a "severe" level at least one hour per day at unpredictable times. This severe level of pain would cause a significant interference with attention and concentration. Assume further that as a result of pain, the claimant would likely leave work early or miss work entirely 1 to 2 days per week.
What does all this mean?
In response to question Number 1, the VE testified that the claimant could not return to past work, but could perform a variety of unskilled, sedentary jobs.
In response to question Number 2, the VE testified that the claimant could not return to either past work or to any other job.
The point of this is to show you how the wording of the question to the VE can result in a win or a loss. That is why it is so important to get your doctor’s cooperation in identifying specific work activity limitations arising from your medical condition.
Further, your testimony should be both truthful and consistent with the limitations set out by your doctor. As your attorney, our job is to explain to you what is in your file and practice your testimony.
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