I am pleased to begin the new year by welcoming Collette Cushing to this blog. Collette joined my law office last year as of counsel. She has extensive experience with Social Security disability hearings. Look for Collette's posts, in addition to my own, in the future.
I am asked what to expect at the hearing by almost every client. I would like to dispel some of the more common misconceptions and concerns that exist about the hearing.
1. On my hearing day, I’m going to court.
Disability hearings are federal administrative proceedings, and are not held at your local courthouse. Most hearings are actually held in office space rented by the Social Security Administration or in federal buildings. In some states, hearings are held in conference rooms of a hotel. For our clients in Maine and New Hampshire, hearings are held in both office buildings (Portland, Maine, and Manchester, New Hampshire) and federal buildings (Augusta and Bangor, Maine). The hearing room is usually a moderately sized “non-descript” room, where there will be a table for you and your attorney, as well as tables for the hearing reporter, any experts requested to attend your hearing, and the judge. In some cases, the hearing will held by video-teleconference, where you and your attorney are in one location and the judge is in another. While the hearing is informal, testimony is taken under oath, and an audio recording is made. Take some time to read the Notice of Hearing, which will give you the time, date and location of your hearing and whether it will be held by video-teleconference.
2. I should wear my “Sunday best” for my hearing.
In general, I tell claimants to come as they are. It actually could send the wrong message if you dress in a way that is inconsistent your typical attire. Often medical providers, especially therapists and counselors, will mention your overall appearance and sometimes even what you are wearing. However, you do want to be respectful to the judge, so I would stay away from clothes that could be distracting or disrespectful. If in doubt, don’t be afraid to ask your attorney.
3. I’m not sure if I should take my medications before the hearing.
This is a tricky question. I usually suggest that clients consult their doctor if they are concerned about medication side effects, including sedation. While you want to be comfortable at the hearing, you must be mentally competent to provide testimony and for the attorney to represent you.
4. I’ll need to bring in witnesses or subpoena medical providers.
In general, the only people in the hearing room will be the claimant and attorney, hearing reporter, any experts, and the judge. This is because the claimant is usually the best witness for their own case. However, there have been occasions where I’ve had a spouse, parent or close friend testify. I’ve also had the even rarer occasion where a medical provider has voluntarily come to provide their expert opinion. But, I cannot compel or subpoena a witness; only the administrative law judge has that power. Instead, a medical source statement from your doctor or a third party statement from someone who knows you well is often just as powerful. This is why it’s important to have an attorney who will meet with you well ahead of the hearing to discuss what evidence will be needed to prove your disability.
5. My attorney will do most of the talking.
While the attorney will have the opportunity to question the client and cross-examine any experts as needed, the claimant will do most of the talking. This is the point of the hearing. The attorney’s primary job at the hearing is to elicit testimony which can only come from sworn witnesses, such as the claimant.
6. I’m afraid I’ll forget to tell the judge an important detail about my case.
The hearing can be stressful and this is a good reason why having an attorney represent you is important. I meet with clients well ahead of the hearing. This meeting not only helps our clients prepare for the types of questions that will be asked but also helps the attorney to remember and ask about those important details, in case you forget.
7. If I don’t “look disabled” the judge will not find me disabled.
Commonly, I get this question from younger clients as well as those suffering from conditions that aren’t readily apparent, such as vertigo, or those conditions that “flare” intermittently such as fibromyalgia or arthritis. To this question, as with other concerns about how the judge will perceive their condition, I usually respond by telling the client not to concern themselves with trying to figure out what the judge is thinking. This usually doesn’t work anyway. For the most part, judges are sensitive to the fact medical conditions do not always outwardly manifest themselves, and that many medical conditions may cause “good” and “bad” days. It’s also important remember that judge is supposed to decide the case on the medical evidence not whether or not you “look disabled.”
8. I’ll know the outcome of my hearing the same day.
It depends. Again, this is why it’s important to choose an attorney familiar with the judge that will decide your case. In Maine and New Hampshire, there are a couple of judges that routinely indicate when the claim will be approved that same day. There are judges that will issue a bench decision. There are also judges that, in the appropriate case, will issue an on the record decision, eliminating the need for the hearing altogether. And, there are judges that give no indication and prefer to review the record again before issuing the written decision.
Certainly, there are many other common concerns that deserve mention. Again, this is why it is important to meet with your attorney well before the hearing to better understand what is likely to happen at your hearing, and the areas likely to be covered in your testimony.