September 28, 2015

Do I Need an Attorney at My Social Security Disability Hearing?

At a recent Social Security disability hearing in Indianapolis, I brought one of my employees along to observe.  When I asked my employee for his impressions after the hearing, he said, “I can see why it’s so important to have an attorney with you at your hearing!”  Since I represent claimants at hundreds of these hearings every year, I have forgotten what it’s like to walk into the hearing room having no idea what is going to happen.  I hadn’t realized all of the little things (and some big things) an attorney can do to maximize the effectiveness of your Social Security disability hearing.  Here are a few reasons why I believe it may be in your best interest to hire an attorney or representative to assist you in your Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) claim.

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Your attorney can ask you questions the Administrative Law Judge (ALJ) did not ask.  Without the aid of a lawyer you may be limited to answering only the questions the ALJ asks.  For instance, if you are alone at your hearing and the judge is concentrating on your bad knee when your real problem is your back, the judge may not let you discuss your back as much as you would like.  You may take for granted the judge knows about your back problems when he/she does not.  An attorney who has discussed your case with you and who knows your medical records may be able to give you the chance to testify about issues the judge may have missed when reviewing your file.  The ALJs and their staff do their best to be prepared for your hearing, but sometimes your medical file does not paint a full picture of all of your impairments.  This is especially true if you have several different medical diagnoses or if your condition has changed dramatically during the time you were waiting for your hearing.

Your attorney will request and submit your medical records. If you do not have a Social Security disability lawyer representing you at your hearing, you will be relying on the Social Security Administration (SSA) to request and submit all pertinent medical records to your file.  Again, the staff at Social Security does its best to request and obtain all of your records, but they do not have the time and resources to double-check to make sure that all of their requests were fulfilled.  They will likely not follow up with you to make sure you didn’t forget to tell them about some of your doctors.  They will not check in with you a few weeks before the hearing to make sure nothing new has happened that needs to be reflected in the file.  You may go to your hearing only to find out that the ALJ will have to request the rest of your records after the hearing is over.  I believe it is crucial for the ALJ to have as complete of a record prior to the hearing as possible, so he or she has a complete picture of your medical condition before hearing your testimony.  My office checks in with you to review your medical treatment, and we follow up with all of your providers to ensure that the record is as complete as possible for your hearing.  We also provide forms for you to take to your doctors to ask their opinions about the severity of your condition; these forms can carry a lot of weight when the ALJ makes a decision on your case.

Your attorney can make legal arguments. The SSA publishes a Listing of Impairments detailing certain diagnoses and criteria that qualify as disabling conditions.  Your medical records may contain certain test results or clinical findings that show that you meet one of these listings.  Further, Social Security has other policies and rulings that might tip the scale in your favor if the ALJ is made aware of them.  An experienced Social Security disability attorney or qualified representative can review your file and cite to exhibits supporting these legal arguments at your hearing.  An effective cross examination of a Medical Expert or Vocational Expert might be the difference between winning and losing at your hearing.

An attorney can prepare you for your day in court. Knowing what to expect and reviewing the questions you may be asked at your Social Security hearing will not only help ease your anxiety, but also help you ensure your answers will clearly convey your inability to work.  Oftentimes when I prepare my clients for a hearing, they initially give me vague answers to common questions, or they misunderstand the purpose of the question.  For example, ALJs often ask claimants if they can clean their homes or do yard work.  A vague “yes” answer may give the ALJ the impression than you are able to vacuum the stairs, wash your floors, and clean your oven without any problems.  It is important that you get the chance to explain if you are only able to do a little light dusting, or if you are only able to sweep your floor if you take a thirty minute break after ten minutes on your feet.  My clients are typically honest people who want the judge to understand that they are doing the best they can in spite of their medical issues.  However, the focus of their testimony at the hearing must be on the extent to which their disabilities prevent them from functioning.  It is my job to make sure that their testimony clearly reflects the severity of their symptoms and their work-related limitations.

These are just a few of the ways I believe an attorney can help you at your Social Security disability hearing.  Social Security does not require you to have an attorney, and you might feel comfortable requesting your own medical records and representing yourself at your hearing.  However, considering that Social Security disability attorneys work on a contingency basis and do not get paid unless you win your claim, it may be in your best interest to at least consult with an attorney to find out if he or she can help you.

It is important to note these are my experiences; other attorneys may have different approaches.  Also understand the SSA has a huge caseload and limited resources.  The ALJs are processing one of the largest backlogs of cases that Social Security has ever seen.  Unfortunately, this means that they do not necessarily have the time or resources to ensure that your case is prepared for a hearing with the attention to detail that you or your own advocate would employ.  If you do not consult an attorney or qualified representative, you must be proactive in ensuring your case is ready for the hearing for which you have waited so long.

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