I gave this presentation at the Fall Conference of the National Organization of Claimants' Representatives (NOSSCR) in Chicago on September 24, 2010.
The Portland, Maine ODAR has required a hearing memorandum since 2006. Prior to scheduling a hearing, the claimant's representative receives a letter from the Chief Judge. That letter states in part:
The judge will conduct the final pre-hearing review of the file approximately 10 working days prior to the hearing. By that time we ask that you will have provided your “statement of the case”. This statement should include:
- A statement of the issues before the Administrative Law Judge, and, if the issue is disability, the period of alleged disability, with any amended onset or duration;
- A short rationale for each “step” in the sequential evaluation process, always using our exhibit number to refer to supporting evidence;
- Acknowledgement and discussion of any strongly conflicting evidence known to you.
- Acknowledgement that you have diligently provided all reasonably available medical updates known to you, and explaining any missing updates that are material to your case.
In the years that we have provided a “statement of the case,” or hearing brief, we have learned a few things, and I am pleased to share them with you.
Ten Tips for Writing Effective Hearing Briefs for the ALJ
1. Get the brief in early.
Aim to submit the brief seven to ten days in advance of the hearing, and even earlier if possible.
You want the brief to be in the record when the judge first reviews the claim.
One of the benefits of a hearing brief is that it is in the record for the judge to read whenever the judge happens to look at the claim. Take advantage of that benefit by getting your brief in early, before the judge has formed an opinion about the claim.
2. Discuss the medical evidence in a helpful way.
There is no one particular method. It depends upon the medical record.
- Organize the medical exhibits and give the judge an overview of the medical record.
- Include important diagnoses and descriptive snippets from the treatment notes, citing to exhibit and page number.
- Emphasize those favorable medical source statements.
3. Brief the 5 steps of the sequential evaluation.
I think it is important to brief the 5 steps of the sequential evaluation. Obviously, there is no reason to write more than a sentence about a particular step if there is no issue with that step.
Step 1 often requires little explanation. However, if there was work after onset, give the judge the details in the brief, so the issue doesn’t take up time at the hearing. Demonstrate that the work was under SGA or an unsuccessful work attempt.
If a listing appears to be met, explain how the elements of the listing are met. Cite to the record by exhibit and page number for each element. This is particularly important for complicated listings, like 1.04A.
In general, not enough time is spent on step 4 issues. Be sure to clarify the claimant’s past relevant work. There is a good practice tip on this topic in the April 2009 Social Security Forum - entitled "Preparing a Detailed Work Background for the ALJ" - from attorney Gilbert Laden.
For step 5, specify what evidence precludes other work. If the medical-vocational guidelines specify a finding of “disabled,” then explain why and cite the appropriate grid rule.
Having each step of the sequential evaluation briefed is reassuring to the judge.
More importantly, briefing each step ensures that you have a complete and detailed theory of the case. According to attorney Charles Martin, the “failure to formulate a complete and detailed theory of the case, covering ALL FIVE steps of the sequential evaluation” is the #1 reason that a Social Security disability claim may be lost at a hearing. Mr. Martin’s practice tips - entitled “Ten Common Reasons a Hearing or Court Appeal May Be Lost” - appeared in the January 2009 Social Security Forum.
4. Tell a compelling story.
There is something special about this claim and this claimant. Tell the judge about it in the brief. Sometimes the claimant has an interesting life story. Sometimes there are good details involving the sacrifice and loss that has accompanied the claimant’s disability.
For example, I had a recent claim involving a client with fibromyalgia. Due to her pain, she was unable to do her hair, which she wore long. So her husband, every morning, would help her with her hair and put it in a pony tail. It is a touching and very personal story, and implicit in its telling is that no one would give up that aspect of one’s life if there were a choice. The medical evidence was all there, but that story won the case.
Stories like this humanize the claimant, and drive home the point that work is not possible.
5. Educate the judge on a critical issue of the claim.
Sometimes one particular issue needs special attention. Perhaps the judge should review a particular listing, regulation or ruling prior to the hearing. The hearing memorandum is the perfect place to address the issue.
- When an unusual listing appears to be met, it should be briefed ahead of the hearing. Certain listings don’t come up that often. For example, I have a client with a claim involving Meniere’s disease, listing 2.07.
- If there is a date last insured issue, be sure to tell the judge how the DLI is satisfied.
- Transferable skills – Ruling 82-41 is still the touchstone.
- DAA – give the judge the facts and the regulations (and do not forget Emergency Teletype EM-96200).
- If there was an unsuccessful work attempt, make sure the brief has the details, particularly the dates of work, that the judge needs to make an appropriate finding.
- If you have good medical opinion evidence from a non-acceptable medical source, tell the judge why it should be given great weight.
6. Don’t forget the negative evidence.
Negative evidence can take many forms. Maybe there are references in the medicals to DAA or illicit drug use. Maybe there are references to work after onset. Maybe a doctor’s note wonders if the claimant is malingering. Often the DDS consultative examination reports are less than helpful. The DDS RFCs are certainly negative evidence.
I urge you to acknowledge the negative evidence in the claim file – do not assume that the ALJ won’t notice it!
Addressing the negative evidence will give your memorandum the appearance of evenhandedness. Acknowledging negative evidence is also good advocacy; it adds to your credibility. So acknowledge the negative evidence, and then explain it away the best you can.
Another reason to acknowledge the negative evidence in the brief is so that the negative evidence does not become the focus of the hearing. Get it out of the way ahead of time by addressing it in your memorandum.
7. Discuss the DDS determination.
Say why the DDS determination was wrong, but also highlight the favorable aspects of the DDS decision. I like to do this, because it gives the judge easy reasons in support of a fully favorable decision. These arguments can occasionally offer compelling reasons to grant the claim.
My favorite is the DDS durational denial. DDS denied the claim because the claimant’s limitations would not last 12 months. Now, 14 months later at the hearing, the claimant has the same problems.
Sometimes DDS never received or never reviewed key evidence. Often there has been additional medical development since the DDS determination. Sometimes DDS gives very little weight to a treating doctor’s medical opinion, without adequate explanation. Point out all this to the judge.
Take advantage of beneficial DDS findings. DDS credibility assessments in the RFC are sometimes favorable. Let the judge know that DDS found the claimant’s allegations of pain to be credible. Also, if DDS ruled out past work, tell the judge that even DDS ruled out past work based on its RFC.
8. Cite Rulings and other authority.
Give the judge the authority that supports your claim. These citations flesh out a brief, and can be important regarding key elements of a claim. Here are a few examples:
- If you have a medical source statement from a treating doctor, remind the judge of the criteria for evaluating opinion evidence contained in 20 CFR 404.1527(d)(2) and Ruling 96-2p.
- Do you have a favorable medical source statement from a medical professional that is not an acceptable medical source under 20 CFR 404.1513? Cite Ruling 06-03p (information from “other sources” provides insight into the “severity of the claimant's impairments and how they affect the claimant's ability to function”).
- Claimant can’t sustain full-time work? Ruling 96-8p.
- Borderline age situation? 20 CFR 404.1563(b)
- Does the claimant have a stellar prior work record? Both 20 CFR 404.1529 and Ruling 96-7p state that prior work record can be considered when assessing credibility.
9. Tailor the memorandum to the particular ALJ.
By the time you are writing a hearing brief, you know which ALJ will decide the claim. Take advantage of this knowledge by tailoring the hearing brief to the particular ALJ.
Every judge has a different perspective. If you have had a half dozen or more hearings with an ALJ, you have a pretty good idea of the judge’s point of view. Use this knowledge to benefit your client, and emphasize the aspects of the claim that will appeal to the judge’s unique inclinations.
“Make things as simple as possible, but not simpler” –Albert Einstein
Every hearing brief should simplify the issues before judge. Let the judge know which issues require his attention and which are routine.
It takes time to organize a claim file and distill it to its essence. By investing the time to organize the claim in your brief, you save the judge the trouble. You will also be better prepared for the hearing.
Bonus tip: Ask for a bench decision or an OTR decision.
For a bench decision, the judge sets forth his reasons for granting the claim orally "from the bench" at the hearing. A bench decision must be a fully favorable decision. The written decision that follows within a few days is just a few paragraphs in length, and basically incorporates by reference the reasons given on the record at the hearing. Bench decisions are governed by HALLEX I-5-1-17.
A bench decision can require some preparation by the judge, because there are several administrative requirements that must be met. When a judge has several hearings in a row, there may be no time to prepare a bench decision on the spot. Some judges will shoot from the hip with a bench decision, but other judges prefer to prepare.
Give the judge a heads up. If your claim is strong, raise the prospect of a bench decision in your hearing memorandum. I usually just say, “Should you decide to make a fully favorable decision, this claim qualifies for a bench decision under HALLEX I-5-1-17.”
You can also ask the judge to grant the claim on the record. I do this when past work is obviously precluded and a favorable decision is directed by the medical-vocational guidelines, or if a listing is clearly met. For example, a hearing is rarely necessary in a claim involving adult listing 12.05C.
You will receive more bench decisions and OTRs with good hearing briefs.