Closing of Your Administrative Hearing Record

Normally you will not receive your decision at your hearing. The ALJ usually explains that a decision will be made and mailed to you shortly after your hearing. If all the evidence has been submitted and no further medical development is necessary, the ALJ will close your administrative record.

As previously discussed in how to prepare for an ALJ Hearing, it is extremely important to submit all of your medical records before your hearing is held. Ideally, the ALJ should always close your record at the conclusion of the hearing. If the record is not closed, further delay in issuing a decision will occur. The following are examples of situations of when the ALJ may determine that your record cannot be closed immediately:

• The ALJ determines that information available from your treating sources does not fully explain your limitations. In this situation, the ALJ may need to schedule you for a consultative examination (CE) at the expense of the Social Security Administration to determine your capabilities. This should only be required in situations where your limitations cannot be determined from the information provided by your treating medical sources.

• The ALJ needs additional information from future medical visits to determine the current status of your medical condition. For example, you have completed chemotherapy and radiation for cancer, but you have not yet seen your oncologist or had follow-up testing to determine if the therapies were successful. In this situation, the ALJ may require documentation from a future medical visit to determine your eligibility.

• You are not receiving treatment for a medical condition. A medical condition is discussed in your medical records or your testimony, but you have not had active treatment for your condition from a medical source. The ALJ has a duty to develop the record and determine the extent of your limitations. If you are not actively receiving treatment for a documented medical condition, the ALJ may need to schedule a consultative examination to determine if the condition has an impact on your ability to perform full-time work.

• Despite your best efforts, your treating physicians have not provided all medical records. You sent out requests for medical records to all your treating sources as soon as your hearing was scheduled, but you have not received responses from all your doctors. You have advised the ALJ of the difficulty in obtaining records, but still think that it is likely that the records will be received in the near future. If the ALJ believes that you will have the ability to obtain the records, and that you made your best efforts to obtain the documentation prior to the hearing, the ALJ may grant you additional time to provide the missing documentation.

• The ALJ discovers an issue that was not identified prior to a hearing that must be resolved prior to issuing a decision. This may be a nonmedical issue that requires further documentation. For example, recent work is identified, and the ALJ needs to determine if this work would disqualify you from receiving continuing disability benefits. The ALJ can ask that additional documentation be provided before your record is closed and a decision is issued.

This is not an exhaustive list of all the possible reasons that a hearing record can be left open, just the most common ones that I have experienced. However, it is always in your best interest to have all of these issues resolved prior to the hearing if possible.

It is likely that the ALJ has spent a substantial time reviewing your file prior to the hearing, and it is usually in your best interest for the ALJ to make a decision as quickly as possible after the hearing closes. If additional evidence needs to be submitted, it is possible that you will not receive the full attention of the ALJ when your file is reviewed at a later time and it will take longer to receive a decision.

Bench Decision

There are rare occasions where the ALJ is able to issue a decision the day of the hearing. These are referred to as bench decisions. The ALJ determines during the hearing that your condition entitles you to benefits and issues an oral decision. The ALJ in these situations can read your decision into the record, and a detailed decision is never issued. Normally within 7 to 10 days after receiving a bench decision, you receive a 2 to 3 page summary from the hearing office indicating that a fully-favorable decision was issued on the day of your hearing and you were approved for benefits.

Why was I scheduled for a supplemental hearing?

If an ALJ discovers a new issue after your initial hearing is held, it is possible that a supplemental hearing can be scheduled. These normally are only held if consultative examinations reveal new facts, or the ALJ discovers that an important issue was not resolved at the original hearing. In my experience, supplemental hearings are only required about 2% of the time.

Although supplemental hearings mean that you will experience an additional delay in receiving your decision (since your record cannot be closed until after the supplemental hearing), it also allows you a chance to provide additional testimony and submit new medical documentation. The only thing that is certain when a supplemental hearing is scheduled is that a decision cannot currently be issued.

There are four possible hearing outcomes.

• Fully Favorable Decision: A fully favorable decision is issued when the ALJ has approved you for the entire period of disability that you have requested. This normally means that you have been approved based on the date you last worked, and that you will receive continuing monthly benefits. However, you can also receive a fully favorable decision if you agree to amend your onset date, or you request benefits for only a period of time that you agree that you were unable to perform work. This type of decision is usually 6 to 10 pages long, and provides an explanation of why the ALJ decided that you are entitled to Social Security Disability/SSI benefits.

• Partially Favorable Decision: The ALJ agrees that you are entitled to disability benefits, but does not grant you benefits for the entire period that you requested. A partially favorable decision can mean that the ALJ determined that you became disabled at a later date, or that you were disabled in the past but regained the ability to perform work. A partially favorable decision is the hardest decision to write and usually is the longest type of decision issued. Partially favorable decisions average between 12 to 20 pages. The ALJ must provide the rationale for why you were disabled for the period of time that you are found to be entitled to benefits, and also provide the rationale for why you were not disabled during the period that you were denied benefits.

• Unfavorable Decision: The ALJ determines that you are not entitled to benefits for any of the period that you requested. This decision normally ranges from 10 to 16 pages. The ALJ will provide the full details of why you do not meet the requirements of the Social Security Disability programs. Any medical opinions provided by your treating physicians should be discussed in an unfavorable decision. The ALJ is required to explain why your doctor’s opinion was not accepted, and why your allegations were not credible.

• Dismissal: The ALJ determines that a medical determination of your disability is not necessary. You are not entitled to benefits, and the only written discussion is why the dismissal is appropriate. Normally dismissals are only issued if you fail to attend your scheduled hearing, you filed a late request for a hearing and the ALJ determines that you did not have good cause, or you voluntarily withdrew your request for a hearing.

How long does it take to receive an ALJ Decision?

In Delaware, most ALJ decisions are issued 30-90 days after the administrative record is closed. However the ALJ has as long as they need to issue a decision. The longest that I have had to wait for a client’s decisions is 13 months. Decisions are normally mailed to you and your attorney on the same day, and the attorney is never supposed to be advised of what the decision is until they receive it in the mail.

• Bench decisions and dismissals are the easiest decisions to issue, so they are normally issued within about a week of the hearing.

• Fully favorable decisions are normally issued within 30-45 days of the record being closed. These are the easiest of the written decisions to issue. Since the ALJ is likely accepting your doctors medical opinion and finding you fully-credible, not as much documentation is necessary.

• Partially favorable and unfavorable decisions are the hardest decisions to write. The ALJ is required to provide detailed discussion of why your treating physician’s medical opinions are being disregarded, and why you are not believable. Since it is likely that these decisions will be appealed, the ALJ must make sure that they have followed all the Social Security Administration rules and regulations so that it is unlikely that their decision will be reversed.

Why does it take so long for the decision?

Decisions are not easy to write. Even though about 75% of the decision includes form language, the remaining 25% is focused on the information in your administrative file. The average written part of the administrative file for my cases is about 350 pages. All of the written documentation and hearing testimony must be summarized in the decision.

Even if you are approved for benefits, the ALJ must explain why your documentation supports that conclusion. Each ALJ is expected to decide about 400-600 cases per year. ALJs usually review your file prior to a hearing, hold a hearing and listen to testimony, decide whether you will be approved for benefits, and then issue the written decision. If your case involves unusual factors, legal research may also be required.

Although ALJs have staff that assist in preparing the case file and issuing your decision, it is still a time consuming process. I normally spend a minimum of 8-10 hours preparing every case before an ALJ hearing. In order to issue the recommended number of decisions per year, an ALJ can only spend about  a day on each claimant. If the ALJ has a full hearing schedule, it does not leave a lot of time to actually issue decisions.

What should I do if I experience a delay in receiving my decision?

The most important advice I can give a client while waiting for a decision, is to be patient. If you are represented by an attorney, you should never communicate directly with the hearing office. The last thing that you want to do is annoy the person that is making a decision on your claim. ALJs are usually very close to their staff, and if the staff complains about you, it is less likely you will be happy with your decision.

I normally do not do anything until after a client has been waiting for 60 or more days for a decision. I receive a monthly report of all my pending cases from my local Office of Disability Adjudication and Review so I am able to determine if any case has been closed and I have not received a decision. If no decision is made in 60 days, I politely ask the ALJ’s assistant if there is any specific issue causing a delay in the decision being issued (for example, the record is not closed). If I discover an issue, I offer assistance in resolving it.

If a decision is still not received within 90 days, and there are no outstanding issues, I send a courtesy letter to the ALJ. I usually make a short argument reminding the ALJ of why I believe my client should be approved, and politely ask if I can provide any additional information to help with the decision process.

I normally warn my clients that it is likely that are going to be denied benefits if they experience a delay of more than 90 days in receiving their decision. Although I hate to annoy ALJs, I usually do become more pushy after 90 days have passed. I will discuss options with my clients and take any additional steps that are required to help obtain a timely decision.

Conclusion

The important thing to remember after the hearing is that hardest part has been completed. You have done everything that you can to establish the severity of your condition, and you have obtained the necessary medical documentation. All you can do after the hearing is wait for the ALJ to take the information that has been provided, process it, and issue a decision.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The Social Security Administration recently released public use files on its website that provide indicators of productivity of Administrative Law Judges. This data is helpful for claimants that are waiting for a hearing to decide their eligibility for Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) benefits. Previously, the majority of this information had to be obtained through Freedom of Information Act (FOIA) requests. Included in the data is approval and denial information for every Administrative Law Judge.

The Social Security Administration currently only has information available for Fiscal Year 2010. (Social Security’s fiscal year runs from October 1, 2009 through September 30, 2010.) The approval rate information is current through December 2009. Therefore this information only provides approval and denial rate information for the 1st quarter of Fiscal Year 2010. (Previously, the Oregonian and the Delaware News Journal had both made approval rate information available through FOIA requests.)

The information reveals valuable data for claimants waiting for an Administrative Law Judge Hearing. I have summarized some of the most important information for the Dover Delaware Office of Disability Adjudication and Review (ODAR).

Dover Delaware ODAR Notable Statistics – 1st Quarter Data for Fiscal Year 2010

• Average time for hearing to be scheduled: 9 Months (after ALJ request is filed)
• Average days for ALJ Decision: 292 days (after ALJ request is filed)
• Claims Decided: 641 (total dispositions)
• Claims Pending: 1572

Dover Delaware ODAR – Comparative Data (Nationally decisions were issued from 147 different ODAR offices during the 1st quarter of 2010)

• The Dover Delaware Hearing Office had the 5th highest denial rate of any hearing office.
• 40.64% of individuals were denied for SSDI and/or SSI by Dover ODAR.
• Only three ODAR offices nationally had a lower approval rate than the Dover ODAR.
• 43.84% of claimants were approved for SSDI and/or SSI by Dover ODAR.

Based on the information made available by SSA, the Dover ALJ’s had the following approval rates in the 1^st quarter of Fiscal Year 2010:

Approval Rates for Dover Delaware Office of Disability Adjudication and Review - 1st Quarter FY 2010

About the Numbers

These numbers tell an interesting story.  In my experience it is generally much harder to be approved for benefits by the Dover Delaware hearing office.  Currently there are 5 ALJs in Dover.  Three of the ALJs approved claims well below the national average.  The other two ALJs approved at rates consistent with the national average.  The Dover ALJ with the lowest approval rate approved approximately 31% less people than the national average.  Overall claims were approved 15% less by Dover ODAR than the national average.

I am very happy that the Social Security Administration has started to publish these numbers.  Hopefully this information continues to be updated in the future.

It is important to remember that the averages do not represent your percentage chance of being approved for benefits.

Each case is different, and even though the numbers for Dover ODAR suggest that it is harder to obtain benefits in Delaware, the facts of your individual claim are the best indicator of your success.  Even if you are assigned to an ALJ with a higher approval rate, you must still be able to establish that you meet the Social Security Disability requirements to be found disabled.

I use the information that has been made available to help my clients prepare for their hearings.  The average wait times help my clients plan for the future.  Red flags are raised if it is taking longer for a client to have a hearing scheduled.  The approval rates help me determine the type of information that is necessary to document my client’s condition and also to estimate their chance of success.

An experienced attorney will be able to use the new data that has been made available to better assess likelihood of success and to gauge their personal performance.  It an attorney reviews this information and determines that they are less successful than average with the ALJs that they practice before, they can use this information to improve their performance.  I recommend that individuals review and discuss this information with a legal representative prior to proceeding to a hearing.

Links to Social Security Data

• All Social Security Public Use Data
• Average Wait Time for ALJ Hearing (by ODAR Office)
• ODAR Workload (by ODAR Office)
• Approval & Denial Information for Every ALJ (raw numbers)
• Dispositions per day per ALJ (by ODAR Office)
• Average Processing Time before Disposition (by ODAR Office)
• Hearings by Video Conference versus In-person (by ODAR Office)

This article was written by Steven Butler.  Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims.  To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Despite the title of the new article (“Social Security disability denials stir up questions“), there has been no real response from the Social Security Administration or government officials of how this problem will be resolved. The sad fact is that individuals served by the Dover ODAR currently have no choice but to live with the problem until the Administrative Law Judge cited decides to retire, transfer to different hearing office, or pursue different job opportunities.

Unfair Treatment Complaint

Although the Social Security Administration has a process for filing an unfair treatment complaint, there is no proof that the system is effective. The process instructs claimants to provide a written complaint and to send it to the Chief Administrative Law Judge of the Office of Disability Adjudication Review. The Social Security Administration will confirm receipt of the complaint, and is supposed to advise you when the matter is closed. However, the Social Security Administration will not provide you details of any responses taken because of the complaint.

I have filed several unfair treatment complaints on behalf of my clients. The Social Security Administration never advised me of the receipt of the complaints, and no information was provided that the matters were closed. The only evidence I ever saw that a complaint was addressed, was mention of my complaints in a report produced by the Inspector General’s Office and the discovery of a copy of a complaint in my client’s file during a remand hearing. (When I obtained an updated copy of the administrative file, I found a copy of the complaint with all of the unfair treatment allegations highlighted.)

What is troubling is that Administrative Law Judge complaints are handled behind closed doors. There is no openness to the review process, and although it appears that Administrative Law Judges are advised of the complaint, the claimant has no right to know how the matter was handled. There is no official process in place to publicly address offensive Administrative Law Judges. Even when an Administrative Law Judge has their hand slapped by a United States District Court Judge, they often continue the same offensive practices. There is no review process available if it is determined that the Administrative Law Judge’s actions were fair.

Responses to Complaints

Since the Dover ODAR opened in 2004, multiple meetings have taken place to discuss concerns regarding the high denial rates. Chief Administrative Law Judge Frank Cristaudo convened a meeting at the Dover Delaware ODAR while he was still Regional Chief Judge for the Third Circuit. He provided attorneys an opportunity to address their concerns. His successor participated in a similar meeting after United States Representative Wayne Gilchrest lodged complaints on behalf of his constituents. No meaningful response was provided at either of these meetings.

I have personally asked for assistance from the National Organization of Social Security Claimants’ Representatives (“NOSSCR”) on several occasions in dealing with these issues. Although I am a sustaining member of this organization, NOSSCR has also failed to take any action to address the problems. NOSSCR leadership has expressed concern that if the Social Security Administration is provided power to regulate Administrative Law Judges that unfairly denied claims, they would also have the same authority to regulate Administrative Law Judges that approved too many claims. (See, “Paying out billions, one judge attracts criticism“).

Many of my clients have also solicited the help of their local Congressional offices. Although Congress has appropriation oversights, they have no direct means of addressing the reported abuses. I have found that a Congressional inquiry often will speed the process of receiving a decision, but will not result in a better decision being made.

Why the Problem is Worse than it Seems

The result of the high Social Security disability denial rates by the Delaware Administrative Law Judges is that individuals scheduled for hearings with the Dover ODAR office often face a higher standard of proof for disability. What is sufficient to prove your case according to the law, may not be sufficient to prove your case based on the Administrative Law Judge assigned to your claim. The Social Security disability system is a non-adversarial system. The Administrative Law Judge is not a representative of the Social Security Administration during your hearing, and is supposed to be impartial.

When pursuing disability benefits, an individual is required to prove by a “preponderance of evidence” that they are unable to work because of their medical condition. (This officially became the standard of proof by amendment to the Social Security Regulations on January 20, 2009). According to 20 CFR Sec. 405.5, this means that the evidence shows “that the existence of the fact to be proven is more likely than not.” Any benefit of doubt should be resolved in the favor of the claimant, and a special role is reserved for treating physicians (see SSR 96-2p).

In a hearing in front of the Chief ALJ of the Dover ODAR, though, it instead feels that the ALJ is a representative for the government, and that you must be able to prove “beyond a reasonable doubt” that your medical condition will prevent you from working. Although a portion of the public may support claims being resolved in this fashion, the law does not.

The News Journal noted that the Dover ODAR Chief ALJ denies disability claims for 70% of individuals between 18-49. The national average for this same group is 32%. However, as I previously indicated these numbers do not tell the whole story. Of the 30% of 18-49 year old individuals that were approved for benefits, partially-favorable decisions were issued 20% of the time. Only 10% of people 18-49 were actually approved for all benefits requested. (Normally a partially-favorable decision awarded individuals only a brief period of disability benefits, but found that the individual had regained the ability to return to work). Even some of the individuals that were approved with fully-favorable decisions had actually voluntarily requested closed periods of disability in order to increase their chance of obtaining any benefits.

Not only do you face a higher standard of disability if appearing before the Administrative Law Judge discussed, there is a higher probability that if you are approved, you will receive less benefits than you deserve. If you file a complaint about the Administrative Law Judge, you are not permitted to know how the matter is resolved, and if it is determined that another hearing is required, you will most likely be forced to face the same Administrative Law Judge again, and this time the Administrative Law Judge will likely be aware of your complaint.

The Next Step.

If you are scheduled for an Administrative Law Judge hearing at the Dover ODAR, first remember that there are some Judges that will fairly consider your disability, but it is important that you know your rights. You have the right to be represented by an attorney, and in my experience, it is in your best interest to seek legal assistance as soon as possible. I recommend seeking the help of an attorney when you initially file for disability to increase your chance of being approved before you ever need to have an Administrative Law Judge hearing.

I encourage my clients to continue to address their concerns about the denial rates of the Dover Administrative Law Judges. My hope is that public acknowledgment of the problem will result in a more open system to handle complaints. These are Judges that are employed and paid by the public, and there is no reason that discipline should not be a matter of public record. I hope that the Congressional delegation will respond by drafting legislation that allows for a fair complaint system that is open to the public, and punishes Judges that knowingly misapply the law.

Contact your Congressman in Delaware:

• Contact Senator Tom Carper
  
• Contact Senator Edward Kaufman
  
• Contact Representative Michael Castle
  

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The ALJ denial rates have serious implications on individuals that live in Delaware and have physical or mental disabilities. Because of the high denial rate, more Delawareans are approved at the initial application level than any other point in the Social Security Disability Process.

The Importance of Obtaining Legal Assistance Early

Since more Delawareans are approved at the initial application level, it is important to have help with your Social Security Disability claim as early as possible. The most significant change that I made in my practice since the Dover ODAR office opened in 2004, was actively representing more people at the initial application level. I discovered that clients denied by Dover ALJs could have been approved at the initial application level if additional medical evidence had been provided. When I started representing claimants in 2003, less than 10% of my clients were at the initial application level. Now more than a third of my cases are at the initial application level.

The initial application is important because you have a clean slate. No medical opinions have been provided that indicate that you can work, and you still have an opportunity to submit evidence that can be considered by the Disability Determination Service. If the State Agency Physician is able to review your treating physician’s medical opinion before providing his or her own opinion, it is more likely that your doctor’s opinion will be incorporated into the decision. Because of the importance of being approved early, I focus on building the strongest claim possible before my clients even apply for benefits. If you are approved benefits on your initial application, you never have to worry about the high denial rates of the Dover ALJs.

More Treatment is Necessary to Establish Disability with Dover ALJs

It is extremely difficult to be approved for benefits at an ALJ hearing in Delaware if you do not have specialist care. Even the Dover ALJs that have higher approval rates are unlikely to approve you for disability if you are only receiving treatment from a family physician. Although your family physician may be willing to treat you for every medical condition, it is important that you receive treatment that will improve your chance of being approved.

If you are suffering from a major disability, the Dover ALJs expect you to see a specialist for your condition. Family physicians are less likely to document symptoms to the same extent as a specialist. Since specialist limit their practice, it is also more likely that they will be aware of recent developments in your condition, and be able to offer treatment alternatives that may help. Having specialist care will make it more likely that you are one of the few that are approved if you eventually have to have a hearing in front of a Dover ALJ.

Your Treating Physicians must be Supportive

If your treating physician believes that you can work, it is unlikely you will be approved for Social Security disability benefits. I normally only accept new clients if a treating physician first documents limitations and explains how the limitations would interfere with your ability to work. If your treating physician is not supportive of your disability, the ALJ will only have the State Agency medical opinions to consider when deciding your claim. Since the State Agency medical opinions were likely the basis of your original denial, the Dover ALJs will cite the same opinions to deny you again.

Even when your treating physicians are helpful, it is still possible to be denied benefits. Several of the individuals featured in the New Journal had opinions from multiple doctors supporting their disability. I even routinely have had clients denied benefits when the opinions of Social Security Consultative Examinations supported their disability.

More Documentation is Necessary

Obtaining supportive medical opinions from your treating physicians is only the starting point in proving disability in Delaware. You must also be able to support your symptoms with objective medical evidence. If you have pain, you must have test results that establish the source of your pain. This is normal throughout the United States, the difference in Delaware is that the ALJs are often looking for you to have the tests repeated throughout the time that you are receiving treatment. It is not enough to have a test performed when you initially became disabled; the ALJs also want to see updated tests that are performed shortly prior to the ALJ hearing.

If you are experiencing pain, but have not had surgery performed, it is rare to be approved benefits by many of the Dover ALJs. Even if you had surgery, the ALJs will look at how invasive the surgery is when making a determination on whether you are disabled. Injections are not significant to most of the ALJs in Delaware, and if you are only taking medication for your condition and have not required more invasive care, it is unusual to be approved.

If you are suffering with a mental based disability, you must have treatment with a psychiatrist and a therapist/psychologist. If you fail to take medication, or abuse illegal drugs or alcohol, you have very little chance of approval (even if your doctor indicates that this is caused by your condition). If you are claiming memory or cognitive impairments, it is also important to have psychological and memory testing to document the severity of your symptoms. In my experience, individuals with purely mental based disabilities are rarely approved in Delaware unless they also have required hospitalizations for their condition.

Higher Costs to Pursue Claims in Delaware

Because of the higher standard of disability that we face in Delaware, I have noticed that the cost of pursuing disability benefits has skyrocketed between 2003 and 2009. The average cost in 2003 was below $150 at the ALJ level; today it is not abnormal to have costs of $400-$600. The reason for the increase is the additional evidence the ALJs are requiring. The ALJs want records from every doctor you have seen since your disability began (even if it is not relevant to your disability), and I often must request opinions from each doctor actively treating you. Since the ALJs do not like fill-in-the-blank forms, narrative opinions (that have cost as much as $1,000) are sometimes needed.

Additional costs are incurred for the additional treatment needed. If you have copays for every visit to your doctor, the additional care will result in more out-of-pocket costs. If you see additional doctors, it is also likely that additional tests and treatment will be suggested.

If you experience a unique condition that has flare-ups, it is important to notify your physician of every flare-up. Even when you have learned to manage your condition during flare-ups, it is important that the flare-ups be documented by your doctor. If your flare-ups are not mentioned in your treatment records, many of the Dover ALJs frequently find that the flare-ups did not occur at the frequency that you identified.

Dover ALJs do not Independently Review Your Disability

ALJs are supposed to independently consider all the medical evidence that is in your file and all testimony that is provided prior to issuing a decision. Before a hearing, it is not abnormal to submit over 100 pages of new medical records, and to provide medical opinions from treating physicians for the first time. Due to the length of time it takes for a hearing to be scheduled, normally the Social Security medical opinions in your file are at least one year old when the hearing is held.

The Chief ALJ of the Social Security Administration, Frank Cristaudo, stressed in the News Journal the importance of ALJs independence. He indicated, We allow the judges to make the decisions they think are appropriate. This stance is commendable, but many of the Dover ALJs fail to exercise their independence.

Although there is so much new information available for the first time at the ALJ hearing, it is common for Dover ALJs to ask, “Why was the Disability Determination Service (DDS) wrong in denying the claim?”. I must be prepared to explain why the State Agency Physician’s medical opinion does not adequately address your limitations (although it is obvious that these doctors never had the opportunity to review your new medical documentation), and I have been reminded by one ALJ that the State Agency Physicians are not biased like treating physicians.

This is a concern because the ALJs are not independently considering your disability. When the majority of Dover ALJs ask for Vocational Expert testimony, they ask the Vocational Experts to only consider limitations that were identified by the State Agency Physician, and when they issue a decision, the State Agency Physician (that never examined you) is normally awarded the most weight. It is rare for the ALJs identified by the News Journal to believe you or your treating physician. Even when they approve benefits, it is usually based on information that was previously provided by the State Agency Physician or a Consultative Examination Physician.

Approved for Less Benefits

The News Journal article briefly provided an example of one individual that was ultimately found disabled, but it was determined that his disability did not begin until 2 years after his employment ended. It is common for decisions from the Dover ALJs to be partially favorable. This means that although you are approved for benefits, the ALJ will find that your disability was not “severe enough” to cause you to become disabled until sometime after you originally stopped working.

ALJs in other areas commonly find that a claimant was disabled when their job ended, even if additional care was not received until a later date. For example, if you are suffering from depression and lose your job because of the condition, but did not start seeing a psychiatrist until after you had to be hospitalized 6 months later, other ALJs will find that your condition was severe enough for you to qualify since your job ended. With many Dover ALJs, you would not be approved until the date that you had to be hospitalized.

If you have a spine impairment, and went through therapy and injections before it was determined that you needed surgery, most ALJs would realize that your doctors wanted to try less invasive treatment before considering surgery. However, with the Dover ALJs discussed in the News Journal, I have had several clients that have not been approved until the date of their surgery. Although these individuals had experienced pain severe enough to prevent them from working for several months (to several years), the ALJs determined that they were not actually disabled until surgery was necessary.

One Dover ALJ is also routinely finding that individuals are only disabled for a brief period. An ALJ normally only awards a closed period of disability if an individual’s condition has actually improved enough to allow them to return to work (or the individual admits that they have the ability to return to work). This specific Dover ALJ routinely issues partially favorable decisions finding that a person was only disabled for a period of 12-18 months. The ALJ will indicate that an individual has improved even if the treating physician does not believe the symptoms resolved.

The News Journal did not provide specific details on the number of fully-favorable versus partially favorable decisions in the article, but I have information for each of the ALJs for fiscal year 2008. The ALJ that was discussed the most by the News Journal had an overall denial rate of 59.2% in 2008, but only issued fully-favorable decisions 22.3% of the time. The remaining 18.5% were partially-favorable decisions. For individuals age 18-49, this same ALJ issued fully-favorable decisions 10.3% of the time, and issued partially favorable decisions 19.9% of the time.

This is alarming because when an onset date is voluntarily amended, or an individual agrees to a closed period of disability, this counts as a fully-favorable decision. This suggests that if individuals did not voluntarily make these changes, the ALJ would have a much higher partially favorable rate (or possibly even deny more claims). Therefore, even some of the people that are approved by the ALJ with the highest denial rate are not actually receiving all the benefits they deserve.

Fewer People Offered Representation

Because the practice of law is a business, it is important that attorneys are able to make a profit when representing individuals. Although I would like to help everyone that contacts me, I must focus my limited resources on helping those people that have the most realistic chance of being approved for benefits. When fewer people are approved for benefits, it becomes harder to offer representation to all the people that need it.

The higher denial rates make it less likely that I can offer representation if your condition is not well documented. When I started practicing in 2003, I would routinely take cases where my client did not have adequate documentation of their disability. I would work with my client to help them establish the necessary medical care, and I would file appeals while they strengthened their case. I realized that the individual may be denied one or more times, but I knew that I could help them improve their future chance of approval.

Now when I meet with a potential client, I am unable to devote my resources to claims that are poorly documented. I have had multiple clients denied benefits that have had 4 or more supportive medical opinions from treating physicians. If it is difficult for someone with the support of all of their doctors to be approved for disability benefits, it is nearly impossible for an individual with little or no medical support to be approved.

The result of this change is that Delawareans that would have been offered representation in the past must now pursue benefits without legal assistance. All of the Delaware attorneys that I speak with that handle Social Security Disability cases are also being more selective in accepting clients. I currently only begin to represent 20% of individuals that request my help. If all of the Delaware attorneys are being more selective in offering representation, the net effect is that fewer claimants are represented.

Claims with Supportive Evidence are Not Being Appealed

If you are denied by an ALJ, you have a right to appeal your decision to the Appeals Council. The Appeals Council typically takes anywhere from 6 months to 2 years to issue a decision. In 2008, Appeals Council denied 73% of claims filed, and only approved 2%. Although Appeals Council remanded 22% of cases, this simply means that your claim will be sent back to the same ALJ that denied you previously. In my experience, the Dover ALJs are no more likely to approve you after your case has been remanded by the Appeals Council.

After being denied by the Appeals Council, you can file an appeal in United States District Court. Unless you can prove that you have very little resources and/or income, it cost $350 to file an appeal to United States District Court. The United State District Court for Delaware issued 30 Social Security Disability decisions in 2008, and remanded 43% for a second hearing (no outright reversals were issued). It took the District Court an average of 527 days to issue a decision in 2008. Between 2004 and 2008, an average of 27 Delaware District Court appeals were filed each year. During the same time, Dover ODAR denied an average of 642 people per year for disability benefits.

The only way that you are assigned a new ALJ for a second hearing is if you can prove bias or your original ALJ is no longer available. I have never had a case assigned to a new ALJ for a second hearing in Dover. If you are successful at getting a second hearing based on an Appeals Council appeal, it is likely that it will take a minimum of 18 months after the ALJ’s original decision before you get a new decision. For cases that are remanded from District Court, it is likely that you will have waited for 3 or more years before you receive another decision.

During the time that you are waiting for the appeals process, you are not receiving benefits. I spend approximately 20 hours preparing a file for the first ALJ hearing. If I have to file an Appeals Council appeal, I spend an average of 10 additional hours working on your claim. District Court appeals take me between 20-25 hours. When a case is remanded for a second hearing, I usually spend at least 10 more hours preparing the case for a second hearing. This does not include the time that my staff spends preparing your file and giving you updates.

When I decide to appeal claims to Appeals Council and United States District Court, I am making a significant investment in my time. If it is not likely that I can obtain a better decision by filing an appeal, I am unable to continue to pursue the claim even if the ALJ technically made errors in your decision. During the entire time that you are waiting for your claim to be decided, I am also not receiving payment for my services. If I spend 40 hours working on an appeal that is not going to be successful, I have spent an entire week of my time that I cannot devote to obtaining additional clients.

Because I am running a business, I have to make a cost-benefit analysis before I agree to take action on your behalf. Since there is only a small chance of receiving benefits after being denied by an ALJ, I appeal only a small number of claims past the ALJ level. I look for ALJ mistakes that are so obvious that I believe that 100% of claims that I appeal to Appeals Council or District Court should be approved.

My main consideration when I decide to appeal is not whether I believe that you are disabled (I believe that 100% of people I represent at hearings are disabled), but whether I believe that you could be approved if you have a second hearing. Based on the small percentage of cases that are filed in Delaware District Court (only about 4% of ALJ denials are appealed to District Court), it appears that other attorneys also take a similar approach. This means that even individuals that have supportive medical evidence and should have been approved benefits are not always appealing their decisions after an ALJ denial.

Conclusion

I am disturbed by what has happened at the Dover ODAR office because it overall is limiting your access to the legal system. Attorneys that were handling large numbers of Social Security Disability Claims in the past are reducing their caseload. Individuals that are unable to work and should be found disabled are being denied benefits. I am reluctant to appeal adverse decisions from the ALJs because it is unlikely that you will be approved for benefits even if your case is remanded. Instead of taking all clients that should be found disabled according to the law, I instead have to focus my attention on taking clients that can be approved based on how the Dover ALJs are applying the law.

I realize that there will always be variances in decision-making, the problem that I had hoped that the News Journal would highlight, is that the variance in Dover is not caused by ALJs exercising their independence, but by some ALJs misapplying the law. I personally have had at least 25 decisions where the ALJ found that my client was not credible because they attended their hearing and responded to questions. (If my client had not attended their hearing, the case would have been dismissed.) I am hoping that the attention that the Dover ODAR office receives from the News Journal articles will at least result in a consistent application of the law so that I can tell my clients that they will receive a fair hearing regardless of the ALJ assigned to their case.

News Journal Articles:

• Disability claims denied more often in Delaware
• After a lifetime of hard labor, body and mind are beaten up
• Woman felt like a ‘beggar trying to get something’
• With a family full of suffering, benefits don’t go a long way
• Hopeless situation sends mom to depths of despair
• Agency refuses to release information about complaints
• Dual roles of judges a source of tension
• Claim denials haunt some to death’s door”
• She fears judge is ‘just waiting for me to die’
• Disability denials troubling to leaders
• Routinely rejecting disability claims deplorable

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. Social Security High Denial Rates by Delaware ALJ Focus of another News Journal Article The Delaware News Journal has published another article in the...
2. The Social Security Administration makes New Administrative Law Judge Data Available Online The Social Security Administration recently released public use files...
3. Part II, The Day of Your Social Security Disability Administrative Law Judge Hearing What to Expect at a Social Security Disability/SSI Administrative Law...

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The article comes as no surprise to me or the Social Security Administration. The News Journal has been working on this expose for over 2 years now, and the Inspector General’s office also has conducted an investigation of this office based on complaints addressed by a local Congressman. Various issues regarding Administrative Law Judges in Dover have also been addressed with the National Chief Administrative Law Judge of the Office Disability Adjudication and Review and the Regional Chief Administrative Law Judge for the Third Circuit.

The disturbing statistics that have already been made available on the News Journal’s website reveal that 3 out of 4 of the Administrative Law Judges at the Dover Delaware Office of Disability Adjudication and Review deny at least 56% of the claims that they decide. Between 2005 and 2008, the Dover Delaware Hearing Office had the 8th worst approval rate in the United States, and in 2008 Dover had the 4th worst approval rate. (Which suggest that the complaints may actually be making the problems worse.)

The scary part is that the statistics that have been published on the News Journal website do not fully explain the severity of the problem. I obtained additional statistics from the Social Security Administration that broke down the decisions for fiscal year 2008 by the age of the claimants. One of the Judges in the Dover hearing office actually denied 68.9% of individuals age 18-49 in 2008. The national denial rate for the same age group was 32.5% and the regional denial rate was 32.7%.

Luckily my office has had a much better experience with the Dover Delaware Office of Disability Adjudication and Review in terms of approval rates for our clients. Personally during the same period (2005 to 2008), I had an approval rate of 71% overall with the Dover Hearing Office. Even with the Administrative Law Judge that denies the highest percentage of disability claims, I still had an approval rate of 54.1% during the entire period referenced in the article. I have achieved these rates based on gaining valuable experience of what it takes to prove disability even with Judges that have a higher standard of disability.

The question that is raised by the initial teaser of the News Journal article is one that many individuals that have been denied disability benefits in Delaware have been asking since the Dover Delaware Office of Disability Adjudication and Review initially opened in 2004, Can I get a fair Social Security Disability hearing in Delaware? Although the answer is unclear, it remains to be seen whether the attention given to these issues by the News Journal article will help resolve the inequities faced by Delaware Residents.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. Social Security High Denial Rates by Delaware ALJ Focus of another News Journal Article The Delaware News Journal has published another article in the...
2. Impact of High Administrative Law Judge Denial Rates on Disabled Delaware Residents The Delaware News Journal published several articles this week discussing...
3. The Social Security Administration makes New Administrative Law Judge Data Available Online The Social Security Administration recently released public use files...

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Part 4, Hearing Tips

Now that you have learned how to prepare for an Administrative Law Judge Hearing, what to expect the day of your hearing, and what actually happens during your hearing, this post will focus on hearing tips for making the most of your Administrative Law Judge Hearing. Generally, the most important thing that you can do is be prepared for your hearing and know what to expect when at your Hearing. The following are some additional tips that I provide to my clients before their Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) Administrative Law Judge hearing.

Tips for Having an Effective Administrative Law Judge Hearing:

• Be prepared to answer questions about your condition. You must be able to discuss your current treatment, your medication, and know the approximate dates of any significant events. Significant events include the date that you became unable to work, dates of any motor vehicle/work place accidents that you were involved in, and dates of any surgeries or hospitalizations. You should know the names of all your doctors, the frequency that you see your doctors, and the date that you last saw each doctor.
• Be honest with the Judge. Even if you the truth is harmful to your disability claim, it is better to be candid with the Judge than to be dishonest. The majority of the time, even if you try to hide adverse details, the Judge still finds out about them by reviewing your medical records. The hearing is your chance to explain any negative aspects of your claim, and allow the Judge to consider whether your answers are credible. I discuss any adverse facts with my clients prior to the hearing.
• Do not surprise your attorney the day of the hearing. Many people decide to reveal facts for the first time when they are sworn in at the hearing. If you are not completely open and honest with your attorney prior to the hearing, your attorney cannot adequately represent you. Reveal all facts to your attorney first, and then your attorney can determine how they affect your claim.
• Do not try to influence the Judge by exaggerating your symptoms. Social Security Administrative Law Judges hear an average of 500 claims per year. The Judges are not doctors, but they have a lot of knowledge of your medical conditions and can normally tell when you are exaggerating your problems.
• Do not try to educate the Judge. Social Security Administrative Law Judges are familiar with most medical conditions. It is not necessary to provide them with information packets that describe your medical condition. Judges are concerned about how your condition interferes with your ability to work. Let your attorney educate the Judge by asking you relevant questions about your limitations.
• Be consistent. Make sure that the statements that you make to the Judge are consistent with what you previously told your doctors, and forms that you previously provided to the Social Security Administration. If your answers are different, explain why they are different.
• Do not accuse your doctors of lying. If you believe that a medical record is inaccurate, it is important that you obtain a written correction from your doctor prior to the Hearing. Since your doctor has nothing to gain from providing misleading statements about your condition, it is likely that the Judge will believe your doctor.
• Do not interrupt the Judge or any expert during your hearing. Listen to the question that you are being asked, and wait until the Judge is finished asking the question to provide your answer. It is important that you actually answer the Judge’s question. Most of the time you will be provided an opportunity to provide additional details later in the hearing, but the Judge will become annoyed if you do not provide an answer to the question asked. If you are not given an opportunity to make your point during the hearing, you also have an option of submitting an additional statement after the hearing.
• Be as specific as possible in your answers. Do not answer questions with responses like, I don’t remember, Not that long, I’m not sure, My doctors can answer that, or, I don’t know. If you cannot remember something, give the best answer you can. Explain to the Judge that you are having a difficult time remembering, but provide your best guess. If you are asked to provide an amount of time you can perform an activity, how much you can lift, or how far you can walk, provide the Judge with your best estimate using an appropriate measurement (time, distance, weight, etc.).
• Explain your answers. If yes or no does not completely answer the question that you are being asked, provide additional explanation. Tell the Judge if your ability to perform an activity is limited and if an accommodation has to be made to allow you to perform an activity. If you can do an activity for only a limited amount of time, explain the limitation. Also explain how performing activities for a limited time impacts your ability to function for the rest of the day, or how you feel the next day after being active.
• Timely submit medical evidence. Provide all medical documentation to the Judge as soon as possible. Most Judges review your file at least a week prior to the scheduled hearing (some review it much earlier than that). If materials are not in your file at the time that it is reviewed by the Judge, it is unlikely that those records will receive adequate consideration. If records are not provided until after your hearing, you will not have an opportunity to discuss those records with the Judge, and experts will not be able to review the records before testifying.
• Provide only relevant information. The Judge is concerned about your treatment, your medical condition, your daily activities, and the steps that you are taking to get better. Do not use your hearing to discuss politics, to make recommendations on how to improve the Social Security system, to tell the Judge about a neighbor or family member that is receiving benefits that is not disabled, or to express your feelings about how unfair the system is. Provide information that will help the Judge understand why you have been unable to work, and to sympathize with your condition.
• Have a positive attitude. The Judge will most likely only meet you once. Although you should not be denied benefits because you are not likeable, I am sure that it happens. If you have a chip on your shoulder, you are negative, or you are rude, it is likely that these actions will have a negative impact on your disability claim. Have a positive attitude during the hearing, and always be pleasant.

Since your hearing will probably last only 30-90 minutes, it is important that you use your time wisely. The tips I have provided will help make your hearing meaningful and provide you with the greatest chance of being approved for disability benefits. If you have questions about any of the information provided in this post, please use the comment area below. Since this is a public website, please do not include any information in your question that would personally identify you.

Relevant Links:

• Questions Generally Asked During Social Security ALJ Hearing
• Social Security Best Practices for ALJ Hearing
• Office of Disability Adjudication and Review Hearing Office Locator
• Part 1, My Social Security Disability Hearing Was Scheduled, Now What?
• Part 2, The Day of Your Social Security Disability Administrative Law Judge Hearing
• Part 3, What Happens During My Social Security Disability Administrative Law Judge Hearing

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. Part 3, What Happens During My Social Security Disability/SSI Hearing? What to Expect at a Social Security Disability/SSI Administrative Law...
2. What Happens after a Social Security Disability/SSI ALJ Hearing In November, I published a four-part series on what to...
3. My Social Security Disability/SSI ALJ Hearing Was Scheduled, Now What? What to Expect at a Social Security Disability/SSI Administrative Law...

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Part 3, What Happens During My Social Security Disability/SSI Hearing?

My prior posts in this series focused on preparing for an Administrative Law Judge Hearing, and what to expect the day of your hearing. This post focuses on what happens during the hearing. Unfortunately, every hearing experience is unique because there is no set structure that Administrative Law Judges must adhere to during a hearing. I normally provide my clients with a list of general topics that are discussed at an ALJ hearing, and provide specific information about the Judge assigned to their claim. (This is one of the reasons that it is helpful for you to be represented at the ALJ hearing. If your attorney is familiar with the Judge, they can describe any nuances of the particular Judge assigned to your case, so that you are better prepared for your hearing.)

General Areas that are Covered During Your Administrative Law Judge Hearing

1. Introductory Questions. The Judge normally asks you general information to confirm your identity. This includes your date of birth, Social Security Number and your mailing address. The Judge will normally also ask about any current income and your marital status.
2. Work Activity. The Judge asks you for details about all jobs you have performed in the past 15 years. The Judge needs you to describe your job responsibilities, how long you performed the job, and needs to know how much weight you had to lift in order to perform the job. Information is also obtained about any work you have performed since you applied for disability benefits. (If you are currently working, the Judge will have questions about your current work activity.)
3. Why You Cannot Work. The Judge will ask you to explain to him/her why you are applying for disability benefits. They are looking for information about the medical condition or conditions that are limiting your ability to perform work. It is important to express the limitations that you experience that would make it difficult to perform work on a regular basis and to explain how your work ended.
4. Description of Treatment. It is important that you are able to provide details to the Judge about the current treatment that you are receiving, and any treatment you have received since your disability began. The Judge is normally concerned about the medications you have tried, physical therapy completed, any surgical procedures that were performed, and any hospitalizations required.
5. Daily Activities. It is important that you describe activities that you perform on a day-to-day basis. The Judge wants to understand what it is about your activities that makes you different from individuals that are currently maintaining employment. It is important to be prepared to answer questions about how you spend your day, about your hobbies, and the places you travel. Judges are normally looking for detailed answers in these areas, and it is important that you remember to describe any rest periods that are necessary to perform your activities.
6. Functional Limitations. The Judge will ask you to describe how often you can perform various physical activities. The Judge asks questions about how far you can walk, how long you can stand, and how long you can sit. It is important to know how much weight you can lift, and what position you are in for most of the day. Be prepared to provide answers with specific durations of time you can perform activities when these questions are asked.
7. Problematic Areas in Your Social Security Record. The Judge will have questions about inconsistencies between your testimony and your medical records, problems with noncompliance of treatment, and questions about any alcohol or substance abuse. Be prepared to provide honest explanations regarding potential problems with your claim.
8. Expectations for the Future. It is common for the Judge to ask you whether you plan to return to work. Plans for future treatment, job training or education are also relevant to discuss. You normally have an opportunity during the hearing to briefly explain the impact your disability is having on your life, and what your goals are for the future.

Your attorney will have an opportunity to ask you additional questions if you are represented. Normally attorneys only ask questions that were not covered by the Judge, but some Judges ask the attorney to ask all questions during the hearing. I use your hearing as an opportunity to ask questions that resolve conflicts in your records and to provide the Judge with a better understanding of your limitations. If there are problems with medical records, I normally want my clients to have an opportunity to explain those problems, even if the Judge did not address the problems.

Expert Testimony

Experts present at your hearing are normally called to testify after your testimony is complete. This testimony is used to help the Judge decide your claim. There is usually no reason for you to directly interact with the experts during the hearing. They are there to provide details based on the medical evidence already in your file and the testimony provided during your hearing. (Experts are not present to provide you with job training, advice on how to obtain work, or to provide treatment or medical advice.)

Vocational Expert

• If a Vocational Expert is present, the Judge will ask the expert to describe the past work that you performed, and explain the skills and physical requirements of the work. The Vocational Expert will provide testimony to the Judge describing your work as you performed it and how it is normally performed in the national economy according the Dictionary of Occupation Titles.
• The Judge may also ask a hypothetical question to the Vocational Expert describing limitations that a hypothetical individual suffers and asking if any work is possible with the limitations described. The Judge will ask the Vocational Expert to consider the impairments that the Social Security Administration determined exist, and also any additional limitations the Judge believes are present based on your testimony and your updated medical information.
• It is normal for a Vocational Expert to provide testimony that jobs are possible based on the medical reports that the Social Security Administration previously used to deny your claim. In order for you to have a realistic possibility of being approved, it is important that the Vocational Expert indicates that no jobs are possible based on the limitations that you describe during the hearing, or that your doctors have described in written opinions.
• If you are represented, your attorney has an opportunity to ask the Vocational Expert follow-up questions. I usually ask the Vocational Expert if you could still perform any jobs provided to the Judge if additional limitations were considered, or ask if an individual could perform work based on limitations that your treating physician has indicated that you have.

Medical Expert

• Medical Experts are used when a Judge needs additional medical information and the details in your file are not sufficient to resolve medical issues.
• Normally a Medical Expert is asked to describe your medical condition based on reviewing your medical records, and to provide opinions about the severity of your condition.
• The Medical Expert is usually asked if your condition and medical records establish that you meet a medical listing, and to describe the evidence that they used to make that determination.
• Attorneys are also provided an opportunity to ask follow-up questions of the Medical Expert. I usually ask a Medical Expert questions to clarify testimony that has already been provided. I want to make sure that the Medical Expert has reviewed all evidence that is in my client’s file, and ask questions about whether it is reasonable for my client to be kept out of work based on the treatment received. (Medical Experts are rarely used in Delaware.)

End of the Hearing

After all testimony is provided, the Judge normally will allow your attorney to make a brief closing argument on why you should be approved for benefits. If all your records have already been provided, the Judge closes your Administrative Record. The entire hearing takes between 30 to 90 minutes, and it is rare that a decision is issued the day of your ALJ hearing.

If the Judge requires additional information after the hearing, the record may be left open for you to submit additional documentation from your treating physicians.� It is also possible that a Judge could schedule you for a Consultative Medical Examination or request additional testing.

Depending on the Judge assigned to your claim, you may receive the decision anywhere from a week to a year after your hearing. Judges have as long as is necessary to issue a decision on your claim. In Delaware, it usually takes an average of 45 to 90 days to receive an ALJ decision. The decision is usually between 8 to 20 pages long, and provides a detailed explanation of the decision the Judge made and the evidence that was used to issue the decision.

The purpose of this post was to provide you with a general overview of what to expect during your Administrative Law Judge hearing. My final post in this series will provide you with tips for making the most out of your hearing. If you have questions about any of the information provided in this post, please use the comment area below. Since this is a public website, please do not include any information in your question that would personally identify you.

Relevant Links:

• Questions Generally Asked During Social Security ALJ Hearing
• Social Security Best Practices for ALJ Hearing
• Office of Disability Adjudication and Review Hearing Office Locator
• Dictionary of Occupation Titles
• Part 1, My Social Security Disability Hearing Was Scheduled, Now What?
• Part 2, The Day of Your Social Security Disability Administrative Law Judge Hearing
• Part 4, Tips for an Effective Social Security Disability Administrative Law Judge Hearing

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. What Happens after a Social Security Disability/SSI ALJ Hearing In November, I published a four-part series on what to...
2. Part II, The Day of Your Social Security Disability Administrative Law Judge Hearing What to Expect at a Social Security Disability/SSI Administrative Law...
3. My Social Security Disability/SSI ALJ Hearing Was Scheduled, Now What? What to Expect at a Social Security Disability/SSI Administrative Law...

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Part II, The Day of Your Administrative Law Judge Hearing

My previous post (My Social Security Disability/SSI ALJ Hearing Was Scheduled, Now What?) described what to do to prepare for an Administrative Law Judge Hearing. The focus of the previous post was making sure that your file was prepared for your hearing and that all relevant information was submitted to the Judge. This post focuses on what to expect on the day of your hearing. The purpose of this post is to make you comfortable with the hearing facilities, and to explain what the hearing room itself will be like.

• The day of your hearing, it is important to arrive early. You should be at your hearing site 30 minutes prior to your scheduled hearing. If you have not been to the hearing location before, you should plan to arrive earlier. Factor in additional travel time in case you get lost, or you have to deal with unexpected traffic delays. If you are taking public transportation to your hearing, make sure that you can still arrive on time even if you miss one of the scheduled buses on your route.
• Dress respectfully for your hearing. Judges understand that you have a disability that limits your ability to perform work, and expect you to be comfortable, but it is not recommended to wear t-shirts, torn clothes, or sweatpants to a hearing.
• Do not bring a cell phone with you to the hearing room. Leave your cell phone outside of the hearing room or in your vehicle. Turning your ringer or phone off is not sufficient. You do not want any risk of a cell phone ringing during a hearing.
• Decide prior to the hearing whether you are going to bring witnesses. My practice is to use witnesses only when they can add information you cannot provide directly. Repetitive testimony from friends and family regarding your limitations is not normally helpful. Although I would like to have a treating physician or therapist testify at every hearing, usually the cost of doing so is prohibitive. (The maximum fee that I can collect for a Social Security disability claim is $6000, and it is not abnormal for a Doctor to charge $2000 or more to testify.) Instead of calling witnesses, I instead focus on obtaining written information from people that you normally would call as a witness. Having family members or friends complete Third Party Disability Reports or letters are usually just as helpful as any testimony they could provide. I usually ask doctors or other medical providers to complete detailed medical opinions.
• Do not waste the Judge’s time. Administrative Law Judges usually have tight schedules. Depending on your Judge, you may be allocated 30-90 minutes for year hearing. Normally Judges are able to begin on time, but if a prior hearing goes beyond the scheduled time, it is possible that there will be a delay in your hearing beginning. It is also possible that a Judge may ask you to begin your hearing prior to the scheduled time if there was a cancellation or no-show. That is why it is important that you arrive at your hearing at least 30 minutes early.
• The hearing room itself varies based on the location of your hearing. If you are appearing at an Office of Disability Adjudication and Review main office, it is likely that you will actually be in a courtroom. The rooms are usually the size of a small conference room, and the actual courtrooms have a bench that the judge sits behind, and normally a conference table where everybody else is seated. If you are at a remote hearing site, the Judge may even be seated at the conference table with you. There are normally computers in every hearing room so that you can review your Social Security electronic file. (The majority of Social Security files are now in electronic format, and paper copies are not normally available.) If you elected to have the hearing by video teleconference, a large television is present in your hearing room and you will see the Judge on the television screen by video teleconference. There also would be a camera in the hearing room that transmits your image to the Judge’s location.
• During the hearing, you remain seated at the table. There is not a witness stand, and you will normally only have to stand when the Judge enters the room. Everyone testifies from the position that they are seated, and you normally will only be asked to leave the room or change positions if you call a witness to testify.
• Normal participants at your hearing. The normal participants at a Social Security ALJ Hearing are the Judge, a Court Reporter, any experts called by the Judge, you and your legal representative. The Court Reporter is responsible for making an audio recording of your hearing. The Judge may call a Vocational Expert or Medical Expert to provide testimony during the hearing. In Delaware, we normally have Vocational Experts for all ALJ hearings. The Vocational Expert provides details to the Judge about the skills and physical requirements of your past jobs. The Vocational Expert also responds to hypothetical questions from the Judge about an individual’s ability to perform jobs based on physical or mental limitations. (You will be advised in your hearing notice if the Judge intends to call any experts to testify at your hearing.)
• Your hearing is not public and there is no need for spectators. I normally do not advise that you bring anyone else into the hearing room with you. Although some Judges allow you to bring friends or family in for moral support, only individuals that are sworn in are able to provide testimony or interact with the Judge during the hearing. Even if a friend or family member knows the answer to a question that you cannot provide, they are not permitted to interrupt during the hearing. I have found that it is difficult for family members to refrain from trying to help during a hearing, and it becomes disruptive to the process. Due to the difficulty in controlling others, I normally advise my clients to have family members or friends remain outside of the hearing room.

At this point you have taken the steps necessary to prepare for your hearing (My Social Security Disability/SSI ALJ Hearing Was Scheduled, Now What?), and now you know what to expect when you arrive at your hearing. My next post will describe your actual testimony during the hearing, and the types of information that is discussed.

If you have questions about any of the information provided in this post, please use the comment area below. Since this is a public website, please do not include any information in your question that would personally identify you. Your email address is not publicly viewable in the comment section and is only used if I need to directly respond to you.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Related posts:

1. Impact of High Administrative Law Judge Denial Rates on Disabled Delaware Residents The Delaware News Journal published several articles this week discussing...
2. The Social Security Administration makes New Administrative Law Judge Data Available Online The Social Security Administration recently released public use files...
3. My Social Security Disability/SSI ALJ Hearing Was Scheduled, Now What? What to Expect at a Social Security Disability/SSI Administrative Law...

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An Administrative Law Judge Hearing for Social Security Disability Insurance (“SSDI”) or Supplemental Security Income (“SSI”) can be a very stressful event. For most individuals, you have already been waiting two or more years since you initially applied for Social Security disability benefits before your hearing is held. You have already been denied benefits at least once, and it has been multiple years since you have been able to work. Most likely, you have spent most (if not all) of your savings, and you have had to rely on friends and family members for support to help you survive.

The Administrative Law Judge (“ALJ”) Hearing may be the most important event in determining your future. Although additional appeals are available if you are denied at the ALJ hearing, only a small portion of people that appeal ALJ denials are ultimately approved. Depending on how long you have been out of work already, it may even be your last chance for being approved for Social Security disability benefits.

The first thing I advise my clients after the ALJ hearing is scheduled, is “take a deep breath and relax”. Although the outcome of the hearing is extremely important, your preparation for the hearing is more important than the actual hearing. The Social Security disability process is not supposed be adversarial, and the main purpose of the hearing is to provide the Judge with additional relevant information so your claim can be decided.

Although the hearings are described as “informal”, there is still a structure to them. It is important that you treat the Judge and any experts called to testify with respect. Each Judge has his/her own unique style, and they conduct the hearings in different ways. The information in this series provides you with a general overview of what to expect when your ALJ hearing is scheduled.

Since there are so many aspects to cover about ALJ hearings, I have separated this series into 4 posts. The first post will focus on what to do to prepare for the ALJ hearing once it is scheduled. The next post will focus on a description of what to expect on the day of your hearing and who will be present during your ALJ hearing. The third post will describe what to expect during the actual hearing, and what types of information you will be asked to provide. The final post will provide tips to make the most out of your ALJ hearing.

Part 1. My ALJ Hearing was Scheduled, Now What?

The most important thing that you can do to have a successful ALJ hearing, is be prepared prior to the hearing. It helps to be represented by an attorney for a hearing because an attorney knows what must be proved, and has knowledge of what the Judge expects. The most important aspect of my representation at an ALJ hearing, is keeping the Judge happy before the hearing even starts. Below is a list of steps to take to make the ALJ hearing process meaningful for both you and the Judge.

1. Know what evidence is in your Social Security Administrative File. Review your Social Security file and determine what medical records are missing. (I obtain a copy of the Social Security File for my clients and make this determination. A copy of your file can be obtained once your request for a hearing is submitted. Contact your local Office of Disability Adjudication and Review for instructions on obtaining your file).
2. Request any records from your doctors that are relevant to your disability and are not currently in your Social Security file. It is important to have information about all treatment you have received since your disability began. The Social Security File will have all information that the Social Security Administration was able to obtain through the date of your last denial.
3. Submit new medical records that you obtain to the Judge before your scheduled hearing. (Remove any records that are already present in your Social Security file.) It is best to submit all new records to the Judge at least 15 days prior to your scheduled ALJ hearing. If you have an electronic file, the Social Security Administration will provide you with a barcode that you can use to fax your records to the Judge.
4. Provide the Office of Disability Adjudication and Review updated information about all of your treatment. Include the dates that you have seen each doctor and the treatment they have provided. Use Social Security Form HA-4631 to provide this information.
5. Provide a detailed medication list to the Judge. List all prescriptions that you are taking, the dosage prescribed, the frequency you take the medication, who prescribed it, and why you are prescribed the medication. It is also helpful to let the Judge know how long you have been taking the specific medication. Use Social Security Form HA-4632 to provide the medication information.
6. Review the work history forms that you previously submitted to the Social Security Administration. If you have attempted any additional work since you last completed the form, submit detailed information to the Judge about your additional work attempts. Use Social Security Form HA-4633 to provide an updated Work History.
7. Provide any information regarding any new accident you have been involved in or diagnosis that you have received. Indicate for the Judge the date that the accident occurred, or when you were diagnosed with any new condition. (This information can be provided in Form HA-4631 above).
8. Correct problems with your onset date. Review your application to determine the onset date that was used when you applied. If your alleged onset date is not consistent with your medical records, speak to your attorney to determine if the date that you are alleging disability should be changed.
9. Obtain detailed information from your treating doctors regarding your limitations. Have conversations with your doctors regarding your ability to perform work, and ask for medical opinion forms to be completed.
10. Review information that you previously submitted to the Social Security Administration describing your limitations, and be prepared to answer similar questions during your hearing. If your answers have changed, think about why you are more or less limited than you were when you previously completed the questionnaires. Make sure you are able to explain any changes to the Judge.
11. Know what you are going to be asked during the hearing. I provide my clients with a list of topics that are normally asked during the hearing. It is important that you be prepared to address areas specific to your disability. You should use the time between your hearing being scheduled and the date of the hearing to think about answers for questions you will be asked. (This will be covered in detail in part 3 of the series.)
12. Decide if you are going to call witnesses. I usually use witnesses only when they can add information that my client cannot provide directly. Repetitive testimony from friends and family regarding your limitations is not normally helpful. Although I would always like to have a treating physician or therapist testify, usually the cost of doing so is prohibitive. Ask yourself if a witness will be able to add any relevant information that you cannot provide yourself. (If you decide to bring a witness, notify the Judge at least 30 days prior to the hearing.)

Taking these steps prior to the hearing will help the Administrative Law Judge close your Social Security Record at the time of your hearing. By properly preparing your claim, you allow the Judge to quickly resolve any procedural issues, and focus his/her time on questions relevant to your disability. If your record is complete, the Judge will have a more accurate outlook on your impairment and limitations, and be able to issue a decision quicker.

I usually use the information compiled above to submit a pre-hearing brief to the Judge. I meet with my client after the hearing is scheduled, and I review all the topics above. I request all the updated information that is needed, and I resolve any conflicts with my clients. I use the pre-hearing brief to explain my theory of the case to the Judge, and to explain why the evidence supports a favorable decision. I identify any areas that still need to be resolved during the hearing.

The next post in this series will describe what you should do on the day of your hearing, and what to expect when you arrive at the hearing. If you have questions about any of the information provided in this post, please use the comment area below. Since this is a public website, please do not include any information in your question that would personally identify you. Your email address is not publicly viewable when you submit a comment and is only used if I need to directly respond to you.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

Relevant Links:

• Social Security Form HA-4631 – Claimant’s Recent Medical Treatment
• Social Security Form HA-4632 – Claimant’s Medications
• Social Security Form HA-4633 – Claimant’s Work Background
• Linarducci & Butler Medical Opinion Form
• Questions Generally Asked During Social Security ALJ Hearing
• Social Security Best Practices for ALJ Hearing
• Office of Disability Adjudication and Review Hearing Office Locator
• Part II, The Day of Your Social Security Disability Administrative Law Judge Hearing
• Part 3, What Happens During My Social Security Disability/SSI Hearing?
• Part 4, Tips for an Effective Social Security Disability Administrative Law Judge Hearing

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