Today our Law Tips subject is one that many people hope never to address: the Social Security disability hearing. However, when your client needs your help in this area, preparing well is critically important. Lane Siesky of Siesky & Viehe, Evansville, Indiana, is here to draw your attention to issues that may be lifesaving for your Social Security client.
While the stakes are high, there is a common misconception that nothing that occurs at the Social Security disability hearing makes a difference. For a general practitioner who may have a caseload of personal injury, divorce and worker’s compensation cases, the small Social Security disability file which provides a relatively modest contingent fee may not get the attention it deserves.
Indeed, I receive phone calls from claimants who have lost at the hearing stage of their Social Security disability case. For whatever reason, a common complaint from the claimants is that their attorney did not prepare the case or the claimant for the hearing.
Issues to Consider Before The Hearing:
Prepare Your Client to Testify.
If the claimant’s case involves subjective symptoms (such as pain), your client’s credibility and testimony may be key to the case. If so, the ALJ must evaluate the claimant’s credibility to determine whether the problems are as severe and significant as the claimant alleges. SSR 96-7p.
- ALJs differ considerably in how they question the claimant.
There are different styles of judging in disability hearings. Some judges seem very open minded and want to flesh out all aspects of the case and make the right decision. Others take a more adversarial approach in which they focus on the weak aspects of a case and, only if the client holds up under questioning, will the claimant be deemed disabled. Some judges tum the questioning over to you completely and allow you to build your case, asking only limited follow up questions.
- Meet with your client prior to the day of the hearing.
- Determine whether any witnesses should testify.
- Advise your client to tell the truth.
- Advise your client to avoid exaggeration.
- Prepare your client to provide specific examples of limitations activities of daily living (ADLs).
- Bring adverse facts in the medical evidence to your client’s attention.
- Ask your clients to articulate why they believe they are disabled.
Amend the Onset Date When Necessary to Conform to the Evidence.
When a Social Security disability or SSI applicant applies for disability, they are asked on what date their condition prevented them from working. In some cases, the answer is the date of an accident or injury, the date of a surgery from which the claimant never recovered, or the date they were terminated from employment due to the inability to perform the job due to physical or mental problems.
In many cases, however, the alleged onset date is not so clear. This may pose a problem for you as the representative. The client may have inadvertently alleged an onset date that is wholly unsupportable. As you review the medical records, you may learn that that claimant was not unable to work until much later in the period for which the claim was made. In such cases, it is often appropriate to amend the onset date to a date consistent with what is supported by the medical evidence and the claimant’s anticipated testimony at the hearing.
- Discuss possible amendment of the onset date with claimant. You must first obtain your client’s informed consent before amending the onset date.
- A change in the claimant’s age category may warrant an amendment of the onset date.
- Know how amending the onset date will affect the claimant’s back benefit. The claimant must understand the implications of that amendment before the amended onset date is proposed or agreed to by the claimant.
- Explain to your client how an amendment of the onset affects Medicare eligibility.
- Amending the onset date may affect the dollar amount of the claimant’s monthly benefits.
- At the hearing, be prepared to amend if such an indication is signaled by the ALJ.
- Be mindful of the date last insured.
- Document the claimant’s decision to amend the onset date
Be Prepared to Address Adverse Evidence.
- Drug addiction and alcoholism
- Unemployment compensation
- Criminal Record.
Social Security disability hearings are unique administrative proceedings. They are not in a normal courtroom setting and are supposed to be non-adversarial. The hearings are informal and usually very brief (seldom more than an hour long). They are not subject to the rules of evidence and are heard by administrative law judges who hear only Social Security disability and Supplemental Security Income (SSI) claims. The disability system operates with an extremely heavy caseload, but each case is resolved with a decision that is subject to further administrative review and ultimately judicial review in federal district court.
The stakes are also tremendously high for the claimants. Most claimants are unemployed and have significant medical problems. Many are uninsured. The minimal level of financial security provided by Social Security disability or even SSI benefits can be life changing for the claimant. Access to health care through Medicaid or Medicare may be lifesaving.
I appreciate Lane Siesky’s relevant input here at Law Tips. If you are interested in Lane’s CLE presentation on “Preparing the Claimant for Hearing,” including his Hearing Due Diligence Checklist, sign up for our comprehensive Social Security seminar. This six-hour CLE is on our calendar as a Video Replay in several locations around the state. Or you have another option: schedule a personal On Demand Seminar on your own schedule.
About our Law Tips faculty participant:
Lane C. Siesky, Siesky & Viehe, PC, Evansville, Indiana, services clients in the areas of personal injury law, employment law, False Claims Act cases and civil litigation. He obtained a Bachelors of Science degree in Biology with a Minor in Psychology from Indiana University in 1995. He went on to
graduate from Indiana Law in 1998. Lane first joined an insurance defense law firm and then transitioned to primarily a plaintiff’s practice. He is a frequent lecturer for continuing legal education seminars.
About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.
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