Post Hearing Argument or Brief

HALLEX section I-2-6-76 provides:

The Social Security regulations provide that, upon request, the ALJ shall allow claimants a reasonable time to present oral argument, or file briefs or other written statements of fact or law. Absent special circumstances, the ALJ need not fix a time limit on oral argument. Oral argument should be recorded and made a part of the record of the case.

After all testimony has been presented, the ALJ must:

1. offer the claimant and representative an opportunity to make a final oral argument at the hearing, to submit a brief or other written statement within a reasonable time after the hearing, or to give their opinion regarding what the evidence proves and what finding of fact and conclusions of law the ALJ should make; and
2. address any assertions the claimant or representative make during their final oral argument, which vary sharply with the evidence or raise new issues that may be relevant. 

In my view, an oral argument at the close of the hearing is not that much help. When post-hearing argument is needed, I prefer to submit a post-hearing brief.

In what circumstances should the claimant's representative submit a post-hearing brief? Certainly when it is necessary to rebut vocational or medical testimony from the hearing. Arguably, a post-hearing brief should be done in every case where the judge did not announce a decision at the hearing, to remind the judge why the claim should be granted. In general, I will write a short letter to the judge in close cases, when I think the judge is on the fence.

When do you submit a post-hearing brief?

Comments

[Stan Denman]

I too, Gordon, do not often make a "closing statement" unless I feel the ALJ is looking for a reason to say "Yes". I try to avoid "arguing the evidence" with the ALJ because I don't want to invite a potentially adversarial exchange.

I do a post-hearing brief if I feel the ALJ is undecided, but feels favorably inclined to approve the claim. It is short and to the point. Basically, "here is the evidence you heard at the hearing that mandates a "Yes"". I do NOT submit post hearing with ALJ who likes to deny claims, as I feel it gives them a road map for a denial that will more easily survive Appeals Council review.

[Gordon Gates]

Stan, thank you for commenting. I appreciate your last point: a post-hearing memo when the case is already lost probably harms your case, because it helps the decision-writer to write a more thorough denial of the claim! Better to submit nothing under those circumstances.

[Nan Evans]

Gordon - Whenever possible, I submit post-hearing memo. Some judges are reluctant to permit it, but most (at least in Boston) will allow it. I also submit a short summary memo at the beginning of the hearing rather than doing an opening statement. The judges definitely prefer the written summary to an opening argument.

Often, the post-hearing memo is an expansion of summary memo I submit at beginning, with testimony and other things that took place at hearing added.

Nan Evans

[Gordon Gates]

Nan, thank you for sharing your comments!