Obtaining benefits series: The Hearing

And now we come to the main event that you have been waiting for: your medical hearing. We call it a medical hearing because the subject matter is your medical qualification for benefits. The hearing is your opportunity to tell your full story to someone empowered to make a decision on your claim, an Administrative Law Judge. 

Hearings consist almost entirely of oral testimony.  The judge and the attorney question the witnesses to solicit testimony.  The witnesses involved in a hearing usually include the claimant (you), a vocational expert, and in some cases a medical expert (a doctor) or additional witnesses such as family members.  

The subject matter of the hearing is essentially the question of whether and why your medical condition prevents you from being able to sustain full-time work. We will go over how your medical condition limits your functioning, how it limits your daily functioning, and how it impacts your lifestyle and household activities. We will also go over some basic demographic and background information. 

When I am preparing for a hearing, I call my client a day or two beforehand to review their proposed testimony and prepare them for what to expect. Here is a list of some of the questions that I will ask on that call, and which are typically asked during the hearing by the judge or myself:

  • When was it you last worked full-time?

  • What happened at that point that caused you to stop working?

  • What medical condition or conditions reduce your ability to work?

  • How does each condition impact your functioning?

  • What are your functional limitations?

  • How long can you stand on your feet before you have a problem? What happens at that point, and due to what medical condition?

  • How far can you walk before you have a problem? What happens then, and due to what medical condition?

  • Do you require an assistive device such as a cane, walker, wheelchair, or crutches? Was it prescribed by a doctor?

  • How long are you able to sit upright in a work-like posture? What happens if you’ve been sitting too long, and due to what medical condition?

  • How much can you lift and carry? What limits that?

  • Are you able to bend over to pick something up over the floor? Are you able to crouch down?

  • Do you have any difficulties with personal care and hygiene? If so, what causes those difficulties?

  • Are you able to keep up with your household chores? If not, how do they get done? What keeps you from keeping up with the chores?

  • What is your level of pain on a daily basis? Is that with or without your pain medication? How does the medication affect the pain?

  • Do you ever have to lay down during the day due to pain or other reasons? How often, and for how long? Why do you need to lay down?

  • Do you experience any side effects from medications?

  • Do you have any difficulties with your mental functioning?

  • Do you have difficulty maintaining focus and attention?

  • Do you have difficulty getting motivated to do things?

  • Do you have trouble finishing tasks?

  • Do you have any difficulties with memory?

  • Do you have problems getting along with people? In what settings?

  • Are you able to handle your money?

  • Are you able to go out and buy groceries?

  • Can you drive? Are there any limitations to your driving?

  • Are there any other functional limitations that you are aware of that impact your ability to work?

This is by no means an exhaustive list.  Each case is unique, and we will tailor the attorney portion of the testimony to your specific condition and limitations, but your attorney should also prepare you for other questions the judge may ask.  Here are some of the questions a judge will typically ask that the attorney will generally skip if leading the testimony:

  • What is your full name, social security, and date of birth?

  • Describe your duties at each of your jobs in the last 15 years.

  • Have you done any work or volunteer activity since your disability onset date?

  • How did you choose that date?

  • What is the composition of your household (who do you live with)?

  • Have you done any travel since the date you allege disability?

  • Do you drink alcohol? Smoke marijuana? Any street drugs?

I generally review all of these questions or all that seem relevant in our prehearing conversation, and at the hearing itself, the same questions are repeated.  By reviewing them with you before the hearing, I am able to verify that your testimony will be helpful and help you clarify any areas where you may not have otherwise been prepared with a good answer.  After all, these aren’t questions you think about every day, so going through them before the hearing will help you know what to expect and not be caught by surprise with something you have never thought about before.  

During the hearing, the judge may also ask you or your representative various questions about your medical treatment and specific contents of the record.  On some occasions there may be statements in your record that the judge wants to discuss or clarify.  Good preparation by the attorney can help prepare for these questions.  It’s also sometimes good to have an attorney who can think and argue on the fly in case of surprises.  

In some cases, the judge will summon a doctor to appear as a “medical expert.”  When a medical expert is involved, their role is to review your medical records and render a professional opinion about certain aspects of your condition.  Stay tuned for a detailed article on medical experts down the line.  For now, you just need to know that they are sometimes involved, and when they are, it is important for the attorney to appropriately prepare.  The medical expert will not interact with the claimant, and you will not generally participate in this portion of the hearing unless the doctor wants your clarification on anything in the record.  

After your testimony is complete, in most cases the judge will take testimony from a “Vocational Expert.”  A vocational expert, often abbreviated as “VE,” is a person who is supposed to be an expert on the economy and the job market.  Most VEs have a background in vocational counseling and job placements for people with disabilities.  The role of the VE is to help the judge determine whether there are jobs in the economy that you can do with your limitations, and ultimately the finding of whether or not there are a “significant number” (a term that has a specific meaning under the law) of jobs determines whether your claim is granted or denied.  Check back here later for a more detailed article just about the vocational expert testimony.  

When we turn to the VE, the judge will first go through some background questions and swear them in as an expert witness.  The first question to the VE is to categorize your past jobs in the terms the government uses to classify work, starting from a reference called the “Dictionary of Occupational Titles” and classifying the exertion and skills required of each job.  After reviewing your past jobs, the judge will move on to presenting “hypotheticals” to the VE.  Each “hypotheticals” is something called a “residual functional capacity,” a detailed statement of abilities and limitations applied to the work setting.  The judge will typically give multiple hypotheticals covering different options for what he or she may find in the final decision.  Each hypothetical is an option, so we don’t know for sure from what hypotheticals are given which of them if any the judge will adopt in the final decision.  In response to each hypothetical, the VE will generally reply by listing off several jobs form the Dictionary of Occupational Titles, listing their exertion category and skill level, and giving an estimate of how many positions exist in that job in the country.  To some scenarios, the VE will say there are no jobs or so few that it may as well be none, and when that is said we know that the case will be won if the judge adopts that hypothetical.  

After the judge is done presenting hypotheticals, the attorney gets a chance.  Sometimes I will present my own hypotheticals based on statements in testimony or medical statements in the written record.  Sometimes I will have cross-examining questions for the VE, questioning details of their previous testimony.  Often, I will have additional general questions, such as asking the typical employer’s tolerance for absences and time off-task.  These answers may not sway the judge in his or her final decision, but if necessary they can be helpful in pursuing a further appeal.  

After the vocational testimony, the hearing is over, and the recording stops and we leave the room.  I will usually spend a few minutes reviewing my impressions of the vocational testimony and explaining what just happened, since it’s often pretty confusing.  At that point we just have to wait for the decision to be issued and mailed, although in some cases if there is outstanding evidence there may be additional paperwork for the attorney to do, and in some cases your attorney may need your help to obtain additional documents.  

And that is all there is to the hearing.  Check back in the future for more articles going over specific details of the hearing, such as more discussion on vocational and medical experts, and case studies of specific hearing questions for specific types of disabilities.