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December 4, 2017

Testifying at Your Social Security Disability Hearing About Your Pain

Pain is probably the most common complaint my clients have concerning their inability to work.  Physical pain can manifest itself in about any area of your body, and describing it to someone else is not always easy. Chances are when you find yourself at a Social Security disability hearing, you are going to need to explain your pain to an Administrative Law Judge (ALJ).  This blog describes some of the more common questions I find that Judges ask about pain. Where is the pain located?  During this portion of testimony, I find many of my clients want to point to where they are affected by pain with hand gestures.  It is important to remember your hearing is being recorded, and you will need to describe in more detail with words exactly where you feel pain.  For example, if you have back pain, you would need to say “it is in my lower back and radiates down my right leg” if that is the case. What does the pain feel like?  Descriptive terms like dull, throbbing, stabbing, sharp, burning can usually give a Judge a good idea of what you are experiencing.  These are not the only words that can describe your pain, but it is important for you to be able to describe what you feel as you are the only one that knows exactly what you feel. How often do you have the pain?  It is fine to say you experience pain all the time if that is the case, but if it is only when you perform certain activities, you should explain it in more detail to the Judge.  This is where you may want to describe difficulties standing, walking, sitting, lifting, and performing daily activities. Can you rate your pain on a scale of 1 to 10 … Continued

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November 28, 2017

Why is There a Job Expert at my Social Security Disability Hearing?

When attending a Social Security disability hearing, you most likely will see or hear testimony from a Vocational Expert (VE), also known as a Job Expert.  The Social Security Administration (SSA) employs Vocational Experts to testify about the classification of work you have performed in the past and to answer hypothetical questions from an Administrative Law Judge (ALJ) as to what occupations can be performed with various physical or mental restrictions.  A VE can testify by telephone or in person. Their background usually consists of placing individuals in the job market through various means, such as vocational rehabilitation.  Usually at the end of your Social Security Disability Insurance and/or Supplemental Security Income (SSI) hearing, the ALJ will pose hypotheticals or examples to the VE.  The ALJ will usually ask the VE what jobs are available to an individual based on their age, education, and past work experience with certain workplace restrictions the ALJ thinks may be applicable to each individual claimant.  Many ALJs will ask numerous hypotheticals.  This gives the ALJ the opportunity to later decide which hypothetical he or she will use for each individual claimant’s decision.  Your attorney/representative will have the opportunity to cross-examine the VE after the ALJ is done. The Vocational Expert will advise the ALJ as to the description and number of jobs in the local and/or national economies. I have found many of my clients have difficulty understanding the role of the VE.  It is important to note that when an ALJ asks examples where there are jobs in the economy that can be performed, it does not always mean you have lost your case.  I tell my clients that they should continue to listen because many ALJs work their way through various hypotheticals until no jobs are available for the claimant.  This is … Continued

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August 31, 2017

Do I Need To Appear At My Social Security Disability Appeals Hearing?

From time to time I am asked “do I need to be at my hearing?”  Always, I let my clients know that they should make every effort to appear in person.  In my practice as an Indiana Social Security Attorney, it is almost always in your best interest to attend your hearing.  My thoughts are, if you have waited this long for the big day to finally arrive and have your Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) claim be resolved, why wouldn’t you show up?  Unless, of course, you were physically or mentally unable to be there. There are circumstances when an Administrative Law Judge (ALJ) will use his/her discretion to allow the claimant to appear by telephone.  Events such as hospitalization, car trouble, or incarceration may warrant such an appearance.  If you can let your attorney know well in advance, you may have a better chance of having a telephonic appearance granted by the Judge. In my experience, if you are physically and mentally able to attend your hearing in person, it may help your case.  One reason I do not prefer video hearings is that the ALJ may not be able to observe all of your problems the way they do in person.  A telephone hearing makes matters even worse.  I want the Judge to be able to see your physical or mental conditions in person.  Your inability to walk steadily, inability to sit uninterrupted during the hearing, and facial expressions could support the underlying medical records.  If the Social Security Administration (SSA) was going to make a determination on your medical records alone, that probably would have already happened.  A hearing is your chance to present your case in person and you do not want to pass on that opportunity, if at all … Continued

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June 20, 2017

Why should you have a brief for your Social Security disability hearing?

At the Law Office of Scott D. Lewis, we submit representative briefs to the Administrative Law Judge (ALJ) prior to our clients’ disability hearing.  In my experience as an Indiana Social Security disability attorney, I find this to be helpful for a variety of reasons.   A well-structured brief can give the ALJ a concise framework for highlighting the important and relevant aspects in regards to a claim for disability. To begin, the brief can outline the procedural aspects or issues with a claim, and show the ALJ what steps or actions have been taken in anticipation of the hearing.  A good brief will show the theory for disability of the case, such as whether the claim meets any Listing of Impairments or whether any of Social Security’s vocational guidelines.  It should cite to a claimant’s medical records to demonstrate the severity of symptoms, point out any objective medical testing, and highlight any medical source statements from treating sources.  A brief should also show how a claimant’s residual functional capacity is so diminished that no full-time jobs could be performed.   In my practice as a Social Security Disability attorney, I find that a brief serves two strong purposes.  First, it allows the ALJ to know what arguments I am asserting for my clients and provides the evidence to support it.  Medical records can contain hundreds of pages of documents, so giving the ALJ the locations of important documents all in one location can prevent some key piece of evidence from being overlooked. Second, I find that it helps me prepare for the hearing. After assembling the brief, I have a stronger understanding of the client, the medical record, and the strategy I plan to use to win the case. Does every ALJ read every brief submitted? Probably not, however … Continued

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December 5, 2016

Should I Be Nervous About My Social Security Disability Hearing?

Clients often tell me they are very nervous and anxious about their upcoming Social security Disability Insurance/Supplemental Security Income hearing. It is pretty easy to understand why.  Some people have never been to a hearing and others are so worried about the outcome they cannot even sleep the night before the hearing date.  Hopefully, this blog will shed a little light on what the atmosphere is at a Social Security disability hearing.   These hearings are considered informal. What that means is there are usually not any strict trial rules and the atmosphere is not that of a criminal or civil trial.  Many Administrative Law Judges (ALJ’s) will let you know that at the very beginning of the hearing.  Although I say it is informal, interrupting others may not be in your best interest and waiting your turn to answer questions may be advisable.  Most hearings have a predictable pattern and if you have an attorney or representative they can usually tell you what that pattern is.  I try to prepare my clients for each individual ALJ that will hear their case.  Different Judges think different things are important.  I believe it is helpful to make things easy for your Judge by being prepared and sticking to what they are interested in.  It would be a rare occasion that making a Judge angry would benefit you in any way.  Don’t get me wrong, all of your information needs to be presented, but as I said it should be done in a manner the court will respect and listen to.  In my experience, most hearings last around forty-five minutes to one hour.  Of course this can vary depending on the complexity of the case and each individual Judge.   Being nervous is normal and should be expected when the stakes are … Continued

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September 9, 2016

“Off task” at work – does it matter at my Social Security disability hearing?

Social Security disability hearings can be confusing – the Administrative Law Judge (ALJ), your attorney, and the experts use a lot of jargon that may make it sound like they are speaking a completely new language.  The basic issue that all of these people are discussing is whether you can perform the duties of a full-time job.  However, Social Security’s rules require that the ALJ provide a detailed explanation of why he or she thinks you can or cannot work.  The ALJ must determine your “residual functional capacity” (RFC), which is a description of what kinds of work-like activities, if any, you are able to perform in spite of your impairments.  The judge must specifically address all the different physical and mental limitations you have. The elements of your physical residual functional capacity – your ability to sit, stand, walk, lift, reach, stoop, etc. – are pretty self-explanatory.  The judge must assess how much of an eight-hour work day you are able to do each of these things.  However, as you probably know well, your medical conditions cause problems in many more areas than just your ability to do physical activities.  If you have pain, mental health diagnoses, or medication side effects, you likely have difficulty with mental tasks as well.  Your skills in concentrating, solving problems, and interacting with others are just as vital to your ability to keep a job as your physical capabilities are. Unfortunately, though, it can be difficult to describe how mental limitations affect your ability to work.  Here are some ways you may notice that your mental limitations affect your daily life: You have difficulty sitting through an entire TV show or reading a whole magazine article because your back pain bothers you so much. You start lots of projects, but you never finish … Continued

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July 7, 2016

Do I have a good Social Security disability case?

I hear this question probably more than any other question from my clients.  When I was in law school, one of my professors told me, “The facts always matter,” and a Social Security disability case is no exception.  It’s also important to know how Social Security applies its rules to the facts of your case when you are trying to show that you are unable to work.  While there are many variables that affect your chances of winning your claim, I have found that some factors are more important than the others. Medical treatment: One of the first things I ask potential clients is whether or not they are seeing doctors.  In order to find that you are disabled, Social Security must be able to find that you have a medically determinable impairment that affects your ability to work.   You must also have medical records that support the statements you make about how badly your symptoms affect you.  You can’t assume that the Administrative Law Judge (ALJ) at your hearing will know that you are a trustworthy person who doesn’t exaggerate.  Even if the ALJ does find that you are a credible person, he or she will still want to see objective testing (like x-rays or MRIs) and/or progress notes from your physician that back up your testimony.  The ALJ will want proof that you are being treated by doctors who specialize in your type of impairments – for example, that you are seeing an orthopedic doctor if you have degenerative disc disease, a rheumatologist if you have fibromyalgia, a psychiatrist if you have bipolar disorder, or a neurologist if you have migraine headaches.  If your doctor is willing to provide a written statement about your work-related limitations, it can also improve your chances of a favorable outcome. Age, education, and work experience: … Continued

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June 9, 2016

Anatomy of a Social Security Disability Hearing Part III: The Decision

When the Administrative Law Judge (ALJ) makes a determination about your disability claim, he or she does not simply send you a letter that says “Congratulations! You have been found disabled!” or “Sorry, but you do not qualify for disability.”  The Social Security Administration (SSA) requires the ALJ to provide you with a thorough explanation of the decision.  When you get your hearing decision letter, the first part will briefly tell you whether you won or lost.  Attached to that letter will be the actual decision, which is typically about five to fifteen pages long.  The overall document is a little overwhelming, so here is a breakdown of the different parts: Jurisdiction and Procedural History This part of the decision summarizes the technical details about the case, including: The type of benefits for which you applied (Social Security Disability Insurance or Supplemental Security Income) The dates of your application, denials, and appeals requests The names of the attorney and any experts who appeared at the hearing A summary of anything that happened after the hearing (e.g., additional evidence added to the record) Any other procedural issues Issues This part of the decision recites the definition of disability according to Social Security’s rules.  If you have a Social Security Disability Insurance (SSDI) claim, it will also discuss your Date Last Insured (DLI).  The final sentence of this section is a statement of whether the judge did or did not find that you are disabled under Social Security’s rules. Applicable Law This part of the decision is complete “boilerplate” – that is, it is a generic description that doesn’t contain any details unique to your case.  Every decision from every ALJ contains this language.  This section describes the five-step sequential evaluation that the judge must follow in making a decision.  It also … Continued

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May 27, 2016

Anatomy of a Social Security Hearing Decision Part II: Approval of the fee agreement

If you were represented at your disability hearing by an attorney or qualified representative, your favorable Social Security hearing decision will contain an “Order of Administrative Law Judge” either approving or disapproving your fee agreement.  That order also explains that you have fifteen days to respond to the judge if you do not agree with his or her order.  Some of my clients, after reading this order, call me because they are worried that they need to respond in order for their case to move forward.  Fortunately for them, though, this language is just another part of Social Security’s form letter.  I explain to them that if they are still willing to hold to their end of the fee agreement, they don’t have to do anything. Social Security has rules about how much an attorney can charge you for his or her services related to your Social Security disability case.  When you hired your attorney, you most likely signed a fee agreement that said you only had to pay your attorney if you were awarded benefits and received back pay.  Under Social Security’s rules, your attorney can typically charge 25% of your back pay, but no more than $6,000.  If you have an attorney who regularly practices Social Security disability law, the attorney probably has an agreement with Social Security that allows him to receive his fees directly from Social Security.  That way, neither you nor your attorney has to worry about calculating the amount of the fee and ensuring timely payment. However, that direct payment of fees can only occur if Social Security finds that your fee agreement complies with Social Security’s rules.  Therefore, when an Administrative Law Judge finds a claimant disabled, he or she must then review the fee agreement to make sure it is in compliance.  … Continued

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May 20, 2016

Anatomy of a Social Security Hearing Decision Part I: How do I know if I won?

If you have a Social Security disability hearing in front of an Administrative Law Judge (ALJ), you probably will leave the hearing without knowing whether you won or not.  Most claimants have to wait between thirty and ninety days to receive the ALJ’s decision in the mail.  (Sometimes it can take even longer if the judge needs to get additional information.) When you receive your decision and look it over, you still might have trouble telling whether you won or not!  The decisions have a lot of information in them, and it can be hard at first glance to figure out what’s important.  The first page of your decision will look something like this:     The first clue you have about the outcome of your case is the title at the top.  There are four possibilities: Notice of Decision – Fully Favorable:  Congratulations!  You won!  A “fully favorable” decision means that the ALJ found that you became disabled as of your alleged onset date and continue to be disabled.  An ALJ also issues a favorable decision when the claimant agrees at the hearing to change his or her alleged onset date or to accept a closed period of disability. Notice of Decision – Partially Favorable:  This decision is typically mostly good news, but not always.  In short, a partially favorable decision is one in which the judge found that you are (or were) disabled for some of the time since your alleged onset date, but not for all of that time.  If you received a “partially favorable” decision, it could mean one of two things: The judge gave you a closed period of disability.  In other words, the ALJ found that you became disabled as of your alleged onset date (or at a point later in time) but also … Continued

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