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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.

10. Simplify.

“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.

Related:

Ten Reasons to Write a Hearing Brief

Sample Hearing Brief



Every other Friday, I publish a selection of posts from the Social Security disability blogs:


There is an excellent article in the Los Angeles Times entitled When pain becomes chronic. Here is an excerpt:

Pain is usually a symptom of something else — a scraped knee, a broken arm, appendicitis. Treating the pain makes the patient less miserable, but it’s just a stopgap measure until the underlying problem is fixed and the pain goes away — the scrape heals, the bone knits back together, the appendix is removed.

With chronic pain, however, the underlying problem that started it has usually (though not always) been fixed and yet the patient is still hurting. A malfunctioning nervous system has started manufacturing pain. The pain is no longer simply a symptom. It has become a problem in its own right.

No one knows a sure-fire way to avoid chronic pain. Still, you can improve your chances by avoiding the temptation to simply tough it out when you get injured. “Luckily, if treated adequately, pain goes away in a majority of patients,” says Dr. Talal Khan, a specialist in anesthesiology, pain management and pain medicine at the University of Kansas Hospital in Kansas City. “But once chronic pain develops, it can be very hard to cure.”

And then it can be devastating. “Patients are often disabled,” Webster says. “They live with a tremendous amount of pain even with top-of-the-line treatment.”

The entire article is worth reading, but the key takeaway for me is that chronic pain is not always a symptom of something else. It is a problem in its own right.

I have may clients that are disabled due to chronic pain. Perhaps because the cause of the pain is not always clear, claimants are rarely credited with the severity of the pain they feel (see, for example, DDS and Claims Involving Chronic Pain). 

Because pain is subjective, often the focus of the disability claim becomes the credibility of the claimant rather than the medical record. The SSA has a regulation, 20 C.F.R. 404.1529, entitled “How we evaluate symptoms, including pain.” The regulation discusses the factors that must be considered by the judge when assessing credibility. Social Security Ruling 96-7p also discusses those factors.

When evaluating a Social Security disability claim involving chronic pain, it is important to recognize that chronic pain is a problem in its own right, not just a symptom of something else.

Social Security must evaluate a claimant’s ability to work on a regular and continuing basis at steps 4 and 5 of the sequential evaluation. A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule (essentially, full-time work). See Social Security Ruling 96-8p and POMS Section DI 24510.057.

For most of the disability and SSI claims that I see, the claimant’s ability to work on a regular and continuing basis is severely compromised.

A disability lawyer should develop evidence that will lead the decisionmaker to the conclusion that full-time work is not possible. Several different types of evidence can help:

  • At the top of the list is a medical source statement from a treating physician or other medical professional stating that the claimant cannot perform essential work-related functions on a full-time basis.
  • A statement of a friend or a relative.  This statement should be considered by the ALJ regarding the severity of the claimant’s impairments. See Social Security Ruling 06-03p.
  • Keep a journal. This will help to track your symptoms, and how many “bad days” you experience.
  • The claimant’s testimony at the hearing. I always spend time preparing my client for this testimony, because I want to present a genuine and authentic portrait of what the claimant’s life is now like. I often have the claimant discuss specific examples of events that were missed due to the impairments.

You will be found disabled at step 5 if the judge determines that you cannot work on a regular and continuing basis. You should present compelling evidence to lead the judge to this conclusion.

If you have received a letter from Social Security denying your disability claim, you need to appeal that denial within 60 days. But there is no reason to wait. Appeal that denial right away, and move on to the next step of the process. 

The appeal period is always 60 days, at every level of the disability review process. Whether you receive an initial determination, a reconsideration denial, or an administrative law judge decision, your deadline for an appeal is 60 days from receipt of the denial letter. The SSA will presume that you received the denial 5 days after the date of the letter, so you have an extra 5 days if needed.

It can be very discouraging to receive that denial letter in the mail. It is a good time to consider getting legal help with your claim. A Social Security disability lawyer can take care of the appeal paperwork for you. Remember, there is no attorney fee unless you win, and Social Security pays the lawyer directly from your award of retroactive benefits.

I filed a hearing memorandum last week for a claim scheduled to go to hearing this Thursday in Manchester, New Hampshire. I got a call this morning from the judge's assistant, saying that the judge had decided to grant the claim on the record, and would I please notify my client that no hearing would be necessary. Such is the power of the hearing memorandum.

I have written before that there a many good reasons to write a hearing memorandum. Here is one more reason: you will get more on the record decisions.

Hearing briefs simplify cases by addressing issues in advance of the hearing. If you can address the judge's concerns in advance, a hearing is not always necessary.


Many claimants complete the Work History Report (Form SSA-3369-BK) as part of a Social Security disability or SSI application process. However, the importance of the report is often not recognized by claimants. It is usually one of several reports that must be completed, and it seems innocuous. But it's not. In many claims, the work history report is just as important to the determination of disability as the claimant's medical records.  

Unless your condition meets a listed impairment, the SSA will make a medical-vocational determination of your claim at steps 4 and 5 of the sequential evaluation. The vocational part of that determination relies heavily on your work history report, because the report helps to establish your past relevant work.

At step 4, the SSA will simply compare your RFC to the requirements of your past work, both as that work is described in the work history report, and as generally performed (see Social Security Ruling 82-61). If Social Security determines that you can still perform your past relevant work, your claim will be denied. 

If you do not describe the work requirements accurately, Social Security may conclude that you can still perform that past relevant work. So be sure to fully describe all of the requirements of the work you have performed in the past 15 years. 

Continue Reading Completing the Work History Report

Every other Friday, I publish a selection of posts from the Social Security disability blogs:

A Social Security disability or SSI claim has a timeline that can vary from state to state.

The initial consideration of your claim usually takes 4-5 months. If your claim is denied and you appeal,  the next step depends upon where you live. 40 states, including Maine, use an intermediate Reconsideration step in the claim process. The 10 "prototype" states, which include the state of New Hampshire, send claims that are appealed after an initial denial directly to a hearing by an administrative law judge.

For states with Reconsideration, that process usually takes another 4-5 months. Claims that are denied at Reconsideration and are appealed will go to a hearing with a U.S. administrative law judge.

The wait time for a hearing varies dramatically in different regions of the country. In Maine, the average processing time is just about 11 months. In New Hampshire, the wait for a hearing is about 14 months. In other parts of the country, average claim processing times may be longer, and can be as long as 21 months. You can check the average processing time for each of the Social Security hearing offices.

To speed up the disability claim process, complete and return all necessary forms to Social Security quickly, so that your claim is not delayed while the SSA is waiting for your paperwork. Also, be sure to appeal your denied claim right away.