On October 6, 2011 U.S. District Court Magistrate Karen Strombum accepted the stipulation of Mr. O’Neill and the US Attorney that administrative law judge had erroneously denied disability benefits to a 59 year old woman who suffers from degenerative changes in her lumbar and thoracic spine, fibromyalgia, depression and who had had surgery to repair injuries to her right shoulder. A judgment was entered reversing the denial and the case was remanded to the Social
Security for further proceedings. Western District Washington US District Court, C11-5160-RBL-KLS

On December 29, 2011 Mr. O’Neill’s 22 year old female client received a favorable decision from the senior attorney advisor without the need to go a hearing.  The Senior Attorney accepted Mr. O’Neill’s argument that based upon the documentation of her conditions of mild mental retardation and anxiety that there was no need for a hearing.

Benefits have begun to be paid.

On February 1, 2012 Mr. O’Neill’s 54 year old female client received a favorable decision following a hearing before an Administrative Law Judge in Portland, Oregon. She suffers from disc protrusions in her neck which affect the use of
her arms.

She is now receiving benefits.  There is an appeal pending regarding an offset of benefits because of her receipt of Washington State workers compensation benefits.

On February 21, 2012 Mr. O’Neill’s 39 year old female client received a favorable decision after a hearing held in Portland, Oregon.  She suffers from epilepsy anddepression.

She is now receiving benefits.

On March 22, 2012 U.S. District Court judge, Ricardo Martinez accepted Mr. O’Neill’s argument and entered a judgment reversing the denial of Social Security benefits to a 62 year old female who suffers from C7 left arm radiculopathy and the residual pain following a laminectomy.  The case has been remanded to the Social Security administration for further proceedings. .  Western District Washington US DistrictCourt, C11-5083-KSM

On April 10, 2012 U.S. District Court judge, Benjamin Settle, accepted Mr. O’Neill’s argument and entered a judgment reversing a denial of Social Security benefits to a 58 year male who has suffered from spina bifida and other low back problems and median mononeuropathies affecting sensory and motor fibers of both arms. The case has been remanded to the Social Security administration for further
proceedings.  Western District Washington US District Court, C11-5228-JRC

Car accidents can be an horrific event in one’s life; an event that can forever change one’s day to day activities and that of their family.  Nothing in this short article will prevent the inevitable, but it is my hope that it will provide a roadmap to set your
mind at some ease during an exceedingly stressful time.

According to the National Highway Traffic Safety Administration, in 2008 there were 5.8 million police reported traffic crashes in the United States (who knows how many went unreported).  Of those 5.8 million reported collisions, 37,261 people were killed and 2.3 million were injured.  So, the odds are you are going to be in an automobile accident at some point in your life and nearly one-half of you will be injured.  Here are some basics you need to know.

RULE NO. 1 – STAY CALM

After a crash, you will likely feel an array of emotions (often many at the same time) including shock, nervousness, anger, and sadness.  Despite this natural reaction, do your best to stay calm or to calm yourself down.  The first few moments after a collision can have long lasting effects on your well being, that of your passengers, that of the other driver, and ultimately on any future personal injury claim.

RULE NO. 2 – STAY SAFE

If you are unable to get out of your car, stay where you are, keep your seatbelt fastened, turn on your hazard lights, call 911, and wait for help.  Do not move your car from its current location unless it is unsafe to leave it where it is.  The reason for this will
become obvious as you continue to read this article.

RULE NO. 3 – REPORT THE INCIDENT

Call the police as soon as possible.  Washington State law uses a vehicle damage threshold to determine whether a party is legally required to report an accident.  Don’t worry about the threshold.  Report the incident and ensure that a written report is drafted.  An accurate crash report can be very important should a legal battle ensue regarding fault for the collision.  The report can be used to verify your version of what happened and may provide additional accident details documented by the officer (e.g. skid marks and eyewitness information).

RULE NO. 4 – TAKE PHOTOGRAPHS

If possible, take photographs of the accident scene, the vehicles involved in the collision, and any visible injuries sustained by those involved.  If litigation results from your accident, the photos literally will be worth a thousand words and hopefully dollars.

RULE NO. 5 – GET MEDICAL HELP

If you do not feel 100%, see a doctor.  This does not mean that you have to go directly to the emergency room, but you need to, at a minimum, see your regular physician as soon as possible.  Documented your injuries by way of medical notations is invaluable.  With this in mind, should you need to go to the doctor for any unrelated illness or injury, be sure to advise the doctor about your accident related problems as well.  Defense attorneys love to point out medical visits where a plaintiff did
not complain of accident related pain.

RULE 6 – MAKE CONTACT WITH YOUR INSURANCE CARRIER

Most of you probably have personal injury protection (PIP) coverage on your vehicle.  PIP is a no fault insurance coverage which will pay for your medical bills up to your policy limits (typically $10,000.00, but can often be as high as $35,000) incurred after a vehicle collision (including when you are a passenger or a pedestrian struck by a car).  One of the greatest advantages to PIP is that you are allowed to see any healthcare provider you choose.  Even if you have health insurance through Kaiser Permanente, you can choose to see any provider you would like whether they are a part of the Kaiser system or not.  You need to keep in mind that your automobile insurance policy has a cooperation clause.  What this means is that if your insurer requests that you see provide a recorded statement or that you attend an independent medical examination, you have to comply.  If you do not, your benefits will be cut off.  Keep in mind that any PIP benefits received will have to be reimbursed from any money you receive from the liable third party.  There are lots of rules and exceptions to this that result in more money in your pocket, more than can be explain in this article.  So, if you want to learn more about how you keep your money, give us a call.

RULE 7 – DO NOT TALK TO THE THIRD PARTY INSURER

The only reason to speak to the other party’s insurance carrier is to ensure payment for your property damage.  Do not talk to them about your injuries or treatment.  There will come a time for that, but not now.  You can give a recorded statement about that the accident details, but decline to answer questions about your condition.

RULE 8 – CONSULT WITH AN ATTORNEY

There are many pitfalls in dealing with an injury claim on your own.  To state the obvious, the liable party’s insurance carrier is not there to help you.  They do not have your best interest in mind.  Their job is to pay you as little as possible as soon as possible and get you to sign a release forever barring any claim against them or their insured.  While you may decide not to hire an attorney because you are confident you can handle the claim on your own, you should at a minimum consult with an attorney to prepare yourself for the barrage of telephone calls and written communication from the adverse insurance company.  With that being said, please give us a call for a free consultation.  There is a lot more to know than what has been stated in this article.

Arrive Early

            Unless your attorney asks you to be at the hearing office at a specific time, arrive for your hearing about half an hour early.  Any earlier is not necessary no matter what your Notice of Hearing may say about coming early to review your file.  Your lawyer has already reviewed your hearing exhibit file so it is not necessary for you to review it, although you may if you want to. Disability hearings usually start on time, so whatever you do, don’t be late.

Don’t Talk About Your Case

            When you come for your hearing, remember: Social Security hearings are serious business.  Don’t make jokes.  Indeed, don’t even talk about your case before or after your hearing in the waiting room, in the hallway, in the elevator or anywhere else where a stranger can overhear.  A Social Security employee may misinterpret what you say and get the wrong impression about you.  There will be a lot of Social Security employees in the building.

The Hearing Room

            There are five hearing rooms in the Portland office.  Four of them have you and the witnesses sitting at a conference table directly across from the ALJ.  The ALJ will be sitting at an elevated desk.  The conference table is actually two tables arranged in a “V” shape.   You will be sitting at the bottom of the “V”.  There are microphones on the conference table.  When you sit down pull the microphone on the table close to you and then forget about it.

            Usually Mr. O’Neill will sit down to your right.  If there is a medical expert or vocational expert they will be sitting to the right of Mr. O’Neill along one side of the “V”.  There is also an assistant who will sit to your left.  The assistant will be running a tape recorder and making some notes during the hearing.

            There are computer monitors on the conference tables.  They are used to look at the digital copies of the exhibits that have been submitted in your case.  Often the ALJ or Mr. O’Neill will refer to them by number; for example, 12F page 6 or 6E page 2.  Don’t worry about knowing the exhibit numbers.

            The only difference between these four hearing rooms and the fifth is that in the fifth hearing room the conference table is a rectangle.  There is no “V” shape.  Mr. O’Neill will still sit on your right, next to you.

The Tape Recorder

            The most important equipment in a hearing room is the tape recorder.  It will be used to record your hearing.  Because your hearing will be recorded, it is important for you to speak clearly when you answer questions.  The microphones are very sensitive so they will pick up your testimony from anywhere in the room if you speak loudly enough for the judge to hear you.  However, shaking your head won’t do.  Neither will pointing at a part of your body without stating out loud what part of your body you are pointing at.  Also, “uh-huh” and “huh-uh” answers do not transcribe as well as yes and no answers.  Try to say “yes” and “no” if you can.

Persons Present in the Hearing Room

            You will be seated at the conference table along with your attorney.  Also seated at the conference table will be the judge’s assistant who operates the tape recorder.  Under some circumstances the judge may call a vocational witness or a doctor to testify.  You are allowed to bring witnesses and, if you wish, observers into the hearing room.  But the hearing is private.  Anyone present other than the judge, the judge’s staff and witnesses called by the judge must have your permission.

Social Security Hearings are Informal

            Social Security hearings are much less formal than court hearings.  Social Security hearings were designed so that they would not be a threatening experience.  The Social Security Administration recognizes that if you can relax as much as possible you will be the best witness for yourself.   It’s okay to let yourself be yourself. 

            Although this is an informal hearing, there are a couple of procedures which are necessary that you must follow.  First, you and all witnesses will testify under oath.  Second, it is important when you are testifying that you not ask anyone else in the room to help you answer questions and that your witnesses or friends do not chime in to help you testify.  Only one person is allowed to testify at a time.

The Administrative Law Judge

            The person who presides in a Social Security hearing is an administrative law judge (ALJ).  Although one is not expected to stand up when the judge comes into the room, the Social Security judge is entitled to the same sort of respect that you would pay to a court judge.

            The judge’s job is to issue an independent decision which is not influenced by the fact that your case was denied at the time of your initial application and on reconsideration.  In fact, judges do issue independent decisions, with more than half of their decisions nationwide being in favor of the claimant.  These are the best odds of winning at any step in the entire Social Security appeals system.

            The informal Social Security hearing is not what we call an “adversarial” hearing.  That is, there is no lawyer on the other side who is going to cross-examine you.  Judges usually do not “cross-examine” a claimant.  The judge is not your opponent.  The judge’s job is to find out about the facts.

            Many people, by the time they get to a hearing before an administrative law judge, are angry with the Social Security system.  Their applications for benefits have been denied twice, often without any logical reason given for the denial.  The system is confusing, time-consuming, cumbersome, and frustrating.

            But, it is important not to take your anger out on the judge.  The judge did not create the system.  The judge is not responsible for the problems that you have had with the system.  Since the judge probably already knows all of the problems with the Social Security appeals system, you do not need to explain these problems.  It also isn’t helpful to ask the judge any questions about your case.  For example, don’t ask, “Why have I been denied?” or “Why has it taken me so long to have a hearing?”  It is best to focus on the facts of your case, to give the judge the best possible reasons to find you disabled.

            The only time you should ask the judge a question is when you do not understand what is being asked of you.  Judges and lawyers sometimes ask simple questions in complicated ways.  This is a shortcoming of the legal profession.  Don’t be intimidated by it.  If you’re not sure you understand a question, don’t be embarrassed to ask politely for an explanation.

            The best way to treat the judge is with the courtesy and candor that you would show an old friend whom you haven’t seen for several years and want to bring up to date about all of your problems.  In other words, it’s okay for you to talk to the judge “regular.”  You do not have to use any special, technical medical or legal words.  In fact, it’s much better if you don’t try to use such terminology.  Just talk to the judge the same way you would talk to an old friend.

The Order in Which Things Happen at the Hearing

            Judges usually begin disability hearings by reciting the “case history” of your case and stating the “issues” to be decided.  Judges often state what you have to prove in your case, but judges seldom give a clear and simple explanation.  They usually say that in order to be found disabled you must be “unable to perform substantial gainful activity which exists in significant numbers in the economy, considering your age, education and work experience.”  When they say it, it almost sounds like you’ve got to be bedridden to get disability benefits, but as will be explained in more detail later, this isn’t true.

            The judge may question you first.  And when the judge is done, the judge will give your lawyer a chance to ask you some questions.  Occasionally, if a claimant is well prepared to testify, the lawyer doesn’t have to ask any questions at all.

            Some judges, however, expect lawyers to handle most of the questioning.  If so, answer questions asked by your lawyer the same way you’d answer them if a stranger were the one asking the questions.  Sometimes a claimant may give less than complete answers when his or her lawyer asks questions, because the claimant thinks that the lawyer knows a lot about the case already.  So, it is important to keep in mind that the judge, who will decide your case, doesn’t know the answers until you say them.  Although the judge probably will read your file before the hearing, when you’re testifying it is best to assume that the judge knows nothing about your case.  Plan on explaining everything.

            When you’re done testifying, your lawyer will be allowed to question any witnesses you’ve brought to the hearing.  It is really important to bring at least one witness to your hearing to testify in support of what you say, to give the judge details about your impairments and how they affect you, or to offer a different perspective on your medical problems.

            After your witness’s testimony, any doctor or vocational expert called by the judge will testify.

            At the end of your hearing some judges will ask you if you have anything more to say.  It’s best if you don’t try to argue your case at this point.  Let your lawyer do that.  Most judges will give a lawyer the opportunity to make a closing argument either at the end of the hearing or to be submitted in writing.

            Most judges won’t tell you if you’ve won, although a few will.  Even if you’re told you’ve won, the judge still must write a decision which will be mailed to you with a copy to your lawyer.  Sometimes it takes quite awhile for the decision to come out.

What to Wear

            A lot of people ask what to wear, whether they should dress up.  You don’t need to dress up.  You don’t need to wear the kind of clothes that you would wear to a wedding.  This is an informal hearing.  You may wear whatever makes you comfortable.  On the other hand, it is more important than going to a ball game or a dance.  Be respectful in your choice.  The clothes should be clean.  Women should use little, if any, makeup.

 Testify Truthfully

            The most important thing about a Social Security hearing is not what you wear.  It is what you say.  It is whether or not you are telling the truth.

            Tell the truth.  When the judge asks a question, don’t try to figure out why the judge is asking that particular question or whether your answer will help or hurt your case.  Be candid about your strengths as well as about your limitations.  The best way to lose a good case is for the judge to think that you’re not telling the truth.  So, testify truthfully. Don’t do any play acting for the judge.  That is, don’t pretend to cry or to be in more pain than you are.  On the other hand, you need not suffer silently or minimize your problems when you tell the judge how you feel.  If you need to take a break from the hearing, ask the judge for permission.  If you are uncomfortable sitting and it would help to stand up for awhile, you may do so and you should not be embarrassed about it.

Tell Your Story

            This will be your chance to tell the judge everything we want the judge to know about why your condition prevents you from holding down a job. Many people think that since they are dealing with the government they should keep their mouth shut, give the shortest possible answer and not volunteer anything.  Although this is usually a good approach when the government is trying to do something to you, the opposite is true when you are asking the government to do something for you.  You need to provide enough facts, details, and explanation in your testimony to make it obvious to the judge that you are disabled.

Approximating Dates

            If you are asked when something happened, if possible the judge would appreciate having the precise date.  But if you don’t remember the exact date, don’t worry.  Few people can remember precise dates for events in their lives. If you don’t remember the exact date, say so.  Then, do your best to give an approximate date, or a month and year, or a season and year, or if you cannot remember more accurately, just the year.  Getting dates wrong is something that all of us, including the judge, do from time to time.  Some people are worse than others with dates.  The judge won’t think you’re being untruthful if it turns out that a date was wrong.

Areas of Testimony

            Questions are going to be asked of you at the hearing about your:
            1.  Work history
            2.  Education
            3.  Medical history
            4.  Symptoms
            5.  Your estimate of your work limitations
            6.  Your daily activities.

Work and Educational History

            For work history, you will be asked to describe job duties on your last job and on all significant jobs you’ve had during the past fifteen years.  The judge will want to know how much weight you had to lift on each job and about how much time during the workday you spent sitting, standing and walking on each job.  And he’ll be interested in difficulties you had performing past jobs because of your health and why you left each former job, especially your last job.

            The judge will also ask about job skills.  If you have had semi-skilled or skilled work, it is important that you describe your skills accurately.  Remember, though, this hearing is not like a job interview in which a person often has a tendency to try to puff up his job skills.  Guard against any such tendency. 

            One test for determining the degree of skill involved in a job is how long it takes to learn to do that job.  Be prepared to estimate how long it would take for an average person to learn to do your past job.  

            For education, you’ll be asked the highest grade you completed in school, whether you had any training in the military, whether you have had any formal vocational training or on-the-job training.

            There usually are few problems in explaining work and educational history.  If you have difficulty explaining why you can’t now perform one of the jobs that you have done in the past 15 years, you’ll want to go over this with your lawyer before the hearing.  If you have recently completed some schooling which might qualify you for a skilled job, be sure your lawyer knows all about this schooling.

Medical History

            Sometimes there are no questions whatsoever about your medical history.  The judge will have your medical records from doctors, hospitals, and others who have treated you and may let the medical records speak for themselves.  It is your lawyer’s job to see to it that all of the medical records the judge needs to see are in the hearing exhibit file and, when necessary, that there are letters from your doctors explaining your medical condition and their opinions about your limitations.

            The judge may ask a few general questions about your medical history.  He may want to know how often you see your doctor, what sort of treatment your doctor provides, what medications you are taking, how often you take them and whether there are any side effects.  You may be asked to describe the symptoms and treatment of your medical condition since it began, what doctors you have seen, where and when you were hospitalized, and so forth. 

            But since the judge has records from your doctors you will not be expected to be able to explain technical medical things to the judge.  Unless you are asked, it’s better not to try to explain what your doctors have told you or what your friends have told you or what you have read about your medical problem unless you have first cleared it with your lawyer.  However, if the judge asks you what your doctor has told you about your condition or your limitations, do your very best to quote your doctor as accurately as possible.

Symptoms

            Symptoms are how you feel.  No one knows how you feel better than you.  You know where you hurt, and when you hurt.  You know when you get short of breath or dizzy or fatigued.  So it’s up to you to describe these symptoms to the judge in as much detail and as vividly as possible.  This is very important, since it’s your symptoms that keep you from working.  You’re not disabled because your condition has a particular label like arthritis or coronary artery disease or emphysema.  You cannot work because of how you feel.

            So if the judge says to you, “Why can’t you work?” don’t say, “It’s because I have arthritis,” etc.  Lots of people who can and do work have the same impairment.  So telling the judge the name of your health problem really tells him nothing.  What the judge needs to know is the severity of your pain and other symptoms.

            Be specific when you describe your symptoms.  Don’t just say, “It hurts.”  Describe what your symptoms feel like, the same way you have probably described your symptoms to members of your family.  Describe the nature, intensity, and location of pain, whether it travels to different parts of your body, how often you have the pain, and how long it lasts.  Explain if you feel different from day to day.  Explain what starts up your pain or other symptoms, what makes them worse and what helps relieve them. 

            Describe your symptoms to the judge the very best you can.  Be precise and truthful.  Don’t exaggerate, but don’t minimize your symptoms either.  If you exaggerate your symptoms in your testimony, if you testify about constant excruciating pain but the medical records don’t back up what you say, the judge will not believe you.  He is also going to wonder how you made it to the hearing if your pain is so bad.  So be careful when you use words such as “extreme” or “excruciating” to describe pain, and don’t say that you “always” or “constantly” hurt or that you “never” get any relief from pain if what you mean is something less.  On the other hand, if you minimize your symptoms by saying they’re not so bad, and a lot of people do, the judge is not going to find you disabled because you will convince him that you have few limitations.  This is not the time to be brave.

            So try not to be a minimizer or an exaggerator.  Try to describe your symptoms exactly like they are.

Estimate How Often You Have Pain or Other Symptoms

            If your symptoms come and go, be prepared to explain how often this happens.  Some people don’t give enough information, especially when the frequency of symptoms varies a lot.  It is never a good answer to say that something happens “sometimes.”  The judge may conclude that “sometimes” means that your symptoms occur only a few times a year—which is not enough to be disabling.  When the frequency of symptoms varies a lot, a lot of explanation and examples are necessary.  For example, tell how often symptoms occur in a usual week.  If you have weeks with no symptoms, estimate how many weeks out of a year are like that.  The more information you give about how often you have symptoms, the better understanding the judge will have about why your symptoms keep you from working.

Estimate How Long Your Pain or Other Symptoms Last

            For symptoms that come and go, be prepared to explain how long they last.  Try to explain this without using the word “sometimes.”  Use the word “usually” and then estimate how often the symptoms last longer and how often the symptoms are shorter.

Estimate the Intensity of Your Symptoms

            You may be asked if your pain and other symptoms vary in intensity.  If so, do your best to describe how your pain and other symptoms vary in intensity during a day or over a week.  Often it is best to use the 1 to 10 scale sometimes used by therapists and doctors.  On this scale 1 is essentially no pain and 10 is the worst pain you’ve ever had.  Be sure you understand this scale and use it correctly without exaggerating.  Think about the worst pain you ever had.  Did it cause you to go to the emergency room?  Did you lie in your bed writhing in pain, finding it difficult to get up even to go to the bathroom?  Did it cause you to roll up into a fetal position?  These are the images that the judge will have about what it means to have pain at a 10 level.  Some people with disability claims have pain that gets to this level once in a while.  Most do not.  People who testify that their pain is frequently at the 10 level do not understand the scale.  Most judges will conclude that someone who testifies that his or her pain is at a 10 level during a hearing is not to be believed—because judges think there is no way a person could be at a hearing with pain that bad.

Estimate of Limitations

            The judge will ask you how far you can walk, how much you can lift, how long you can stand, how long you can sit, etc.  You must give the judge a genuine estimate of what you can do.  So it is important to think about these things before your hearing.

            If a friend asks you how far you can walk, you probably start thinking of places you have walked recently, how you felt when you got there, whether you had to stop and rest along the way and so forth.  You are likely to answer his question by giving one or more examples of places you have walked recently.  If the judge asks this question, answer it the same way.  Talk to the judge the same way you would talk to an old friend.

            A Social Security hearing is not a court hearing.  If you are familiar with court hearings or have watched lawyer shows on television, wipe such things from your mind.  In court hearings, lawyers are always advising people, “Don’t volunteer.”  What lawyers mean, of course, is don’t give any examples or details, wait for the lawyer to ask.  In Social Security hearings, this rule about not volunteering does not apply and, indeed, if you don’t “volunteer” information, you may not be giving the judge as much information as he needs in order to decide your case.

            Let’s look at some examples.  You decide which testimony is best.  The person who has been advised by a lawyer not to volunteer in answering a question may answer this way:

            ALJ:                 How far can you walk?

            Claimant:         Two blocks.

A person who talks to a judge the same way he talks to a friend, as we’re advising you to do, will answer the question this way:

            ALJ:                 How far can you walk?

            Claimant:         Judge, I can’t walk more than about 2 blocks without stopping to rest. Yesterday, I went to the store, which is only about a block and a half from my house.  By the time I got there, my back felt like it had a hot spike driven into it.  I started limping.  All I bought at the store was a loaf of bread.  I could barely carry it home.  On the way home, I had to stop three times because my back hurt so much.  When I got home I sat down in my recliner chair and     put my legs up before I even put the bread away.

            As you can see, the person who talks to the judge as he would an old friend provides a lot of important information, some good examples and some relevant details.

            Also, be aware that there is a built-in ambiguity in a judge’s question concerning how long you can stand, how much you can lift, how far you can walk, and so forth.  Judges always ask the question just that way: “How long can you stand?”  The question should not be interpreted to mean, “How long can you stand before you are in so much pain that you must go home and go to bed?”  What the judge needs to know, of course, is how long you can stand in a work situation where you must stand for awhile, are allowed to sit down, and then must stand again.

            Many times it is best to answer the question more than one way.  You might give the judge an example of overdoing it and having to go lie down.  But if you give the judge that example, be sure to fully explain it.  Be sure to explain that, for example, when you washed Thanksgiving dinner dishes for an hour, you had to go lie down for half an hour.  Otherwise, it will show up in the judge’s decision that you have the capacity to stand for one hour at a time, when your true capacity in a work situation is much less.  But also give other examples that demonstrate the work situation: for example, if you are going to stand for a period of time, then sit, then stand again, this second standing time may be much shorter.

            The problem that we have the way these questions are asked is even worse when the question comes to sitting.  This sort of exchange happens all the time:

                        ALJ:                 How long can you sit?

                        Claimant:         Twenty minutes.

            When the judge hears this answer, the judge looks at a clock and writes down that the claimant has been sitting there for forty minutes when he answered that question.  Thus, the judge concludes that the claimant is a liar.

            What this claimant meant, of course, is that he could sit for 20 minutes in a work situation, then stand or walk for awhile and return to sitting.  In all likelihood, a claimant with a sitting problem, after forcing himself to sit through an hour-long Social Security hearing will go home and lie down for a long time in order to relieve the pain in his back.  He answered the question truthfully.  He can only sit for about 20 minutes in a work situation.  If he forces himself, he can sit longer but then it takes some time to recuperate.  It is important to explain all this to the judge so he can understand what you are able to do day in and day out in a work situation.

            Here is an example of a good answer to a question about sitting:

                        ALJ:                 How long can you sit?

                       Claimant:         If I force myself, I can sit here for perhaps a whole hour, but I’ll have to go home and lie down and I won’t be much good for the rest of the day.  When I am trying to do things around the house, like pay bills, I only sit for about 20 minutes at a time and then I get up and walk around for 15 or 20 minutes before I go back to sitting.  If I were on a job where I could change positions between sitting and standing or walking, the length of time that I could sit would get shorter as the day wore on.  Sitting is really hard on my back.  It’s better, though, if I can sit in my recliner chair with my legs up.  I can sit in that chair for a long time but I find it really hard, for example, to pay bills sitting in that chair. I usually sit at the dining room table when I pay bills.

            Another problem comes up when you have good days and bad days.  For example, on good days you might be able to sit or stand or walk for much longer than you can on a bad day.  If you have good days and bad days, describe what it’s like on a good day and what it’s like on a bad day.  Be prepared, though, for the judge to ask you for your estimate of how many days out of a month are good days and how many are bad days.  A lot of people answer such questions as, “Well, I never counted them.”  Count them.  The judge will need this information.

            It is important that you give specific estimates about your problems.  For example, if you tell the judge you have a particular problem “occasionally” or “once in a while,” without further explanation, the judge won’t know if you have the problem once a week or once a year.  And there is a big difference. 

            To give good testimony about your limitations, it is really important for you to know yourself, know your limitations, and neither exaggerate nor minimize them.  This is hard to do.  You will need to think about it, perhaps discuss your limitations with your family members and definitely discuss these limitations with your attorney before the hearing.

Mental Limitations

            This memorandum is not intended to help prepare people to testify who have only mental limitations, since the issues in such cases are different in many ways from those we have been discussing; and it is difficult to make general statements about how to prepare for such cases.  If your case involves only mental limitations, you and your lawyer will need to go through these matters before the hearing.  For those with mental limitations in combination with physical impairments, it is also necessary to discuss the mental limitations with your lawyer prior to your hearing; but there are a few things that we can say here about mental limitation in combination with physical impairments.

            Many people who have serious physical problems, especially if they have been having pain for a long time, develop emotional problems associated with their physical impairments.  This is so common that it is surprising to find someone with a long-term physical problem who doesn’t also have some emotional problem.  Many people who suffer physical impairments are afraid to talk about this emotional component of pain for fear they will be viewed as crazy.  But having such problems doesn’t mean you’re crazy.  It probably means you’re normal. 

            It is important that you be willing and able to describe any emotional problems because it is often the emotional aspect of pain that interferes the greatest with the ability to work.  Common problems include:

            Difficulty concentrating      A quick temper

            Forgetfulness                           Difficulty getting along with others

            Nervousness                            Avoid other people

            Crying spells                            Depression

            If you have some of these problems, you may be asked about your ability to understand, carry out and remember instructions, to make judgments, to respond to supervisors, co-workers and usual work situations and how well you deal with changes in a routine work setting.  You may be asked how well you deal with stress which, you must remember, is a very individual thing.  Different people find different things stressful.  If the judge asks you about how well you deal with stress, as part of your answer be sure to tell the judge what sorts of things you find stressful, especially things at work.

            Sometimes claimants have trouble putting their fingers on exactly what it is about work that they find stressful.  For this reason we’re providing a list of examples of things some people find stressful in work:

            Meeting deadlines                    Completing job tasks               Working with others

            Dealing with the public          Working quickly                        Trying to work with precision

            Doing complex tasks               Making decisions                      Working within a schedule

            Dealing with supervisors      Being criticized by supervisors

            Simply knowing that work is being supervised                     Fear of failure at work

            Getting to work regularly     Remaining at work a full day  

            Sometimes people find routine, repetitive work stressful because of the monotony of routine, no opportunity for learning new things, little latitude for decision-making, lack of collaboration on the job, underutilization of skills, or the lack of meaningfulness of work.  Think about whether you find any of these things particularly stressful.  If so, discuss them with your lawyer.

Daily Activities

            Judges always ask about daily activities.  They ask how you spend a usual day.  They use your description to figure out whether or not your daily activities are consistent with the symptoms and limitations you describe.  For example, if you claim to have trouble standing and walking because of severe pain in your legs but you testify that you go out dancing every night, the judge is going to have some reason to doubt your testimony about your symptoms and limitations.

            The judge’s questioning about your daily activities provides you with a golden opportunity to help your case by giving him a lot of details.  You can see how the following non-specific answers prevent the judge from hearing very useful information:

                        ALJ:                 What do you do on a usual day?

                        Claimant:         Nothing.

            This is not a good answer.  Sitting staring at a television set is doing something.  Sitting staring out the window is doing something.  Sitting staring at a blank wall or at the ceiling is doing something.  So describe to the judge what you do—but don’t do it this way.  Here’s another bad example:

                        ALJ:                 What do you do on a usual day?

                       Claimant:         Well, judge, my days vary quite a lot.  I have good days         and bad days.  On some days, I do some cleaning, cooking straightening up the house, sometimes some laundry and going to the store.  On bad days I can’t even do that.

            This is a truthful answer since the person does all of these things, but it doesn’t help his case at all.  He failed to mention the fact that he only does cleaning for a few minutes at a time; he cooks only simple meals because he can’t stand in the kitchen long enough to do anything more elaborate; he has help doing the laundry; and he never goes to the store alone; he always takes along his 15-year-old son to carry the groceries.  In other words, the brief description of the things that he did during the day does not support his disability claim.  But the details about how he goes about doing these things do help his case. 

            To help the judge live your day with you, run through your bad and good days hour by hour.  Emphasize those things that you do differently now because of your health problems.  If you stop and think about it, you’ll probably be able to come up with a long list of things you do differently now than you did before you became disabled.  These things are important because they show how your disability has affected your life in major and minor ways.

            Describe how long you are active doing things and how long you rest afterwards.  Tell where you rest, whether it’s sitting or lying down, whether it’s on the couch or the bed or a recliner chair.  Tell how long it takes you to do a project now compared to how long it used to take you.  Describe all those things that you need help from other people doing—and tell who those others are and what help they provide.

            The more specifics you can provide, the easier it is for the judge to understand your testimony about your symptoms and your limitations. 

Some Things Not to Do.

            1.  Don’t argue your case.    Your job is to testify to facts, describe your symptoms, give estimates of your limitations, outline your daily activities, and provide lots of examples of your problems.  Leave arguing your case to your lawyer.  For example, don’t use the line that starts, “I worked all my life…” or say, “I know I can’t work.”

            2.  Don’t try to draw conclusions for the judge.  Let the judge draw his own conclusions.  Don’t say things such as, “If I could work, I would be working,” or “I want to work.”  If you say this, it may cause the judge to think about Stephen Hawking who is in a wheelchair and unable to speak but is the world’s leading expert on theoretical physics.  There are many exceptional people with extreme disabilities who work, but it is never the issue in a Social Security disability case that there are others who work.  It is also not relevant that there may be people less disabled than you who receive disability benefits.

            3.  Don’t compare yourself to others.  Popular lines are:

            “I know a guy who has nothing wrong with him but he gets disability benefits.”

            “I know people less disabled than me who get disability benefits.”

            “If I were an alcoholic you’d give me disability benefits.”

None of these comparisons helps your case.

            4.  Don’t try to play on the judge’s sympathy.  It won’t help.  It might backfire.  Judges have heard it all.  Your financial situation, the fact that the bank is going to foreclose on your house and so forth are not relevant.

            5.  Don’t try to demonstrate what a “good” person you are.  Benefits are not awarded to the virtuous.  They are awarded to the disabled.  Some claimants, perhaps influenced by the rhetoric of politicians, bring up extraneous matters to demonstrate their virtue, thinking that this will influence the judge.  Don’t do it.  This is just like trying to play on the judge’s sympathy.  It doesn’t work.  It may backfire.

            6.  Don’t engage in dramatics.  You are supposed to tell the truth at your hearing.  If you are putting on a show for the judge, that is the same thing as not telling the truth.  At the same time, however, if you are having a genuine problem at the hearing and you need to stop the hearing for any reason, tell the judge and your lawyer.

            7.  Don’t give irrelevant testimony.  Social Security regulations contain a list of irrelevant areas of testimony—areas that the judge can’t and won’t consider in deciding your case.  This list is in the regulations:

                        (a)  The fact that you are unable to get work is irrelevant.

                        (b)  The lack of work in your local area is irrelevant.

                        (c)  Hiring practices of employers are irrelevant.

                        (d)  Technological changes in the industry in which you have worked are irrelevant (although there are questions about this one).

                        (e)  Cyclical economic conditions are irrelevant.

                        (f)  The fact that there are no job openings is irrelevant.

                        (g)  The fact that you would not actually be hired for a job is irrelevant.

                        (h)  The fact that you do not wish to work at a particular job is irrelevant.

            Also, it doesn’t matter that a particular job doesn’t pay well enough to support your family.

Problem Areas

            There are three areas where there could be potential problems.  So if any of these three things apply to your case, be sure to bring them to the attention of your lawyer before the hearing.

1.         Think back over the fifteen years before you became disabled.  Pick out your easiest job.  If you have trouble explaining why you can’t now do that easiest job, even if that job no longer exists, be sure to discuss this with your lawyer.

2.         If you got unemployment compensation at any time during the period that you are claiming to be disabled, make sure your lawyer knows about it before the hearing.

3.         If you have been looking for work during any period that you claim to be disabled, tell your lawyer about it before the hearing.

Things to Do:

            Here’s a list of things to do at your hearing:

                        1.  Tell the truth.

                        2.  Neither exaggerate nor minimize your symptoms

                        3.  Know your present abilities and limitations.

                        4.  Provide relevant details and concrete examples but don’t ramble on.

What Your Lawyer Does

            Your hearing will be over in an hour or an hour and a half or so.  Seldom do hearings take more than two hours.  If you’re well prepared because of this memorandum and your meeting with your lawyer before your hearing, your lawyer may not have to ask many questions at the hearing.  In hearings with those judges who like to ask most of the questions, it’s only where issues are not developed or your lawyer thinks that your testimony wasn’t clear enough that he needs to ask some questions of you at your hearing.  In fact, it’s better that way.  The more that comes from you in answer to the judge’s questions, the better it is for your case.  Your case will go in naturally.  Your testimony will flow freely.  The judge will get to know you and your situation as you talk with him.  And the judge won’t think that it’s your lawyer testifying rather than you.  Your lawyer will, however, ask questions of any witnesses you bring along to the hearing.

            The most important part of what your lawyer does usually takes place outside the hearing.  That is, your lawyer gathers medical evidence, gets reports from doctors, does legal research, prepares witnesses to testify and may make a closing argument either in writing or at the hearing.  The best developed cases, though, don’t need a closing argument.  If a case is so well developed with medical evidence and with the claimant’s testimony, by the time it comes to argue the case, it is like stating the obvious—so why bother?  But this doesn’t mean that there hasn’t been a lot of work that has gone into making a case so clear.

            There is one thing that we lawyers cannot do, however.  We’re powerless to speed up the system.  There may be a delay in getting the written decision.  The written decision will be mailed to you with a copy to your lawyer.  Sometimes, written decisions come out fairly quickly.  Fairly quickly for a hearing decision is about a month.  It is not uncommon for it to take three months or even much longer for a hearing decision to be mailed to you.

            There is seldom any way to speed up getting a decision out.  So, as hard as it is, you must grit your teeth and wait.  If more than three months pass, it’s a good idea to make sure that your file hasn’t been lost; and your lawyer can do that.  But your lawyer can’t do much more to speed things up.

Attorney’s Fees

            If your case involves Social Security disability benefits only, there is no problem with attorney’s fees.  Your fee agreement with your lawyer calls for the attorney’s fees to be either the maximum set by the Commissioner (currently $6,000) or 25 percent of the back benefits, whichever is less.  The Social Security Administration will withhold the attorney’s fees from your back benefits and, assuming neither you nor the judge objects to the fee, the SSA will send that money to your lawyer.  Although it’s your money, you’re not involved in paying it.  But you will have to pay expenses directly to your lawyer since your fee agreement calls for you to reimburse your lawyer for expenses.

            Whenever there is any SSI involved in a case, however, things get more complicated.  The Social Security Administration will withhold benefits to pay your lawyer.  The total amount of attorney fees for both Social Security disability and SSI claims cannot exceed the $6,000 set by the Commissioner.  If excess fees are withheld, your lawyer will write to the Social Security Administration and direct that fees withheld in excess of the $6,000 limit be sent to you. 

If You Lose

            Sometimes good cases, well-presented cases, are lost.  It’s hard to figure out why, but it happens.  There are usually some possibilities for appeal.  If you lose, be sure to consult right away with your lawyer about appealing your case.  Do this as soon as possible.  It is absolutely essential that you appeal to the Appeals Council within 60 days of the judge’s decision or you will lose your right to appeal.

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