Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Disability Insurance Benefits and Supplemental Security Income payments. The podcast is hosted by Steven Butler of Linarducci & Butler, PA.

Episode 3 focuses on: Impact of Vacation on Disability Claim; Completion of Materials for “Can Social Security Disability Help Your Client?” seminar; What if Disney Ran the Social Security Administration; How Social Security Benefits are Taxed; How a Disability Attorney Can Help Your Claim; SSI Benefits while in a Public Institution; and, Complaining About ALJ Bias. Download now or press play below.

Show Notes:

-          Now Available in iTunes (subscribe in iTunes)

This Week’s Topics:

-          Issues During Week in Disability Law Practice

• Impact of Vacation on Disability Claim
• Completion of Materials for Social Security Disability Ethics Presentation
  • Discussion about Delaware State Bar Association CLE on “Can Social Security Disability Help Your Client?” (Registration Form)
• What if Disney Ran the Social Security Administration

-          Social Security News (Discussion of Topics Reported in the News and Blogs this Week)

• How are my Social Security Benefits Taxed? – Blog post by Sheri Abrams
  • Discussion of importance of seeking help from a tax professional once awarded Disability Benefits
  • Social Security Frequently Asked Questions about Tax
    • Do I have to Pay Income Tax on my Social Security? (Social Security Administration
    • Withholding Federal Income Tax from Social Security (Social Security Administration)
    • Social Security and Income Tax (National Organization of Social Security Claimants’ Representatives)
• How a Disability Lawyer Helps Your Claim – Blog post by Gordon Gates
  • Overview of the ways that an attorney helps an individual applying for Social Security Disability Benefits
  • Also see:
    • A Doctor or a Lawyer for Your Disability Claim – Blog post by Gordon Gates
    • Advantages of Being Represented for Social Security Disability Claim – Blog post on DelawareDisability.com
• SSI Benefits while in a Public Institution
  • My SSI Benefits Stopped While I Was in the Hospital, Why? – Blog Post by Tomasz Stasiuk
  • Discussion of why SSI benefits are terminated while in a public institution
• Complaining about ALJ Bias – Blog Post by Jeffrey Delott
  • Discussion about Administrative Law Judge Bias Complaint Process
  • How to File an Unfair Treatment Complaint (Social Security Administration)
  • Administrative Law Judge/Public Alleged Misconduct Complaints System (Social Security Public Notice)

Closing Credits:

-          Contact Steve Butler to Discuss Social Security Disability Law Weekly

• DelawareDisability.com Contact Form
• Email: Steve@SSAlaw.us
• Twitter: @DisabilityGuy
• Facebook: http://facebook.com/SSALaw

I hope you enjoyed the third episode. Episode 1 and Episode 2 are still available. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

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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.

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The majority of individuals that seek the assistance of an attorney do not qualify under medical listings. Instead they must be able to prove that their medical diagnosis causes limitations that will make it impossible to perform full-time work. If you are under the age of 50, it is not important whether you can perform your past work, just whether you are capable of performing any full-time work based on your limitations.

Generally, you are found to able to perform full-time work if you can stand for a total of at least 15 minutes of every hour during an eight hour work day (for a total of two hours in an eight hour workday), remain seated for a total of 45 minutes out of each hour for an eight hour workday, and have the ability to lift more than 3 pounds of weight on an occasional basis throughout the workday. If your impairment limits your ability to stand for less than a total of two hours during an eight hour workday, it is normally difficult to perform even sedentary work. Additionally, if your impairment causes frequent unscheduled breaks during an eight hour workday, or frequent absences on a weekly or monthly basis, most employers will not tolerate your loss of productivity. Vocational experts generally indicate that if an individual is unproductive for 15% or more of a workday, they are not employable.

For individuals age 50 or older, the disability standard is somewhat more lenient. You must still have a medical diagnosis that will result in limitations in the ability to perform work, but it is possible to be approved for benefits even if there are still jobs that you could perform on a full-time basis. If you are between the age of 50 and 54, and limited to a sit-down job that requires very little skills, generally you are found disabled unless you have performed similar jobs in the past. If you are age 55 or older, it is possible to be approved for benefits even if you can still perform jobs that require standing up six hours or more during an eight hour workday, and lifting up to 20 pounds on an occasional basis. The main question for individuals between the ages of 50 and 64 will be the type of work that they performed in the past, and whether the skills that you have learned from the past work will transfer to easier work. If an individual age 55 and older is only able to perform work with lifting restrictions of less than 20 pounds, and has no transferable skills to work that is consistent with their remaining abilities, generally they will be found disabled.

Before applying for benefits it is a was important that all individuals have treatment for their condition. If you are suffering from an impairment, it is important that it is diagnosed. Simply having aches and pains without a medical diagnosis is generally not sufficient. Social Security considers all physical and mental conditions when determining your disability. If you are experiencing any medical problems, it is in your best interest to discuss those with a doctor and to follow your doctor’s treatment suggestions. Even if you did not stop working as a result of medical condition that you are suffering from, it is important that you have treatment for these conditions and that you disclose your condition to the Social Security Administration.

While pursuing treatment for your condition, it is important that you see specialists for confirmation of your diagnosis, and to obtain suggestions for improvement of your condition. Often, I am unable to offer my assistance to individuals because they have not received sufficient care for their condition. If you are suffering from back pain, arthritis, depression, or any other condition that is preventing you from performing work, it is normally important that you see a specialist for your condition. If there are objective tests to determine if your condition exists, Social Security will normally expect that those tests be performed prior to your application. If your doctor prescribes medications, it is important that you take your medications as prescribed. Failure to follow or comply with your doctor’s instructions can result in a denial for benefits. If you have difficulty following your doctor’s instructions, it is important that you speak with your doctor concerning the difficulties.

For individuals that do not have medical insurance, it is possible to receive treatment through clinics. In Delaware, there are several different low cost physical and mental health clinics that are available. These clinics usually see patients on a sliding scale basis. Information will be asked about your resources and income and the clinics will determine the most that you can pay for the services that are available. Often these clinics are able to provide services to low income individuals free of charge. If you have limited income and resources it is also important that you apply for medical assistance through the state that you live in. If you are below the poverty level, you often will qualify for free medical care through the state you live in. The Medicaid program in the State of Delaware provides better coverage than the majority of health care plans that individuals can purchase on their own. Generally, with Medicaid in Delaware, all doctor and hospital visits are free of charge. Transportation is available at a low cost, and prescriptions are normally less than five dollars.

When you apply for disability benefits, Social Security considers your medical condition and also information that you provide them. It is important that Social Security finds you to be a credible person when you apply for benefits. Social Security looks for inconsistencies in the statements that you provide, and inconsistencies between your statements and statements in your physician’s reports. The use of illegal substances, or the abuse of alcohol can cause problems for you during your application. If your use of illegal substances or alcohol is material to your condition, even if you are disabled, Social Security will deny you benefits. Even if your use of illegal substances or abuse of alcohol does not contribute to your condition, it can still be used as a factor in determining your credibility. If you are using illegal substances, you are breaking the law, and this is a relevant factor when determining if you are believable. Even if you do not disclose information about your use of alcohol or illegal substances, normally this information is found through your medical records.

You cannot begin your application for disability benefits until you are out of work, or your earnings from work have been reduced to a point that you are making less than $980 per month (this is the maximum you can make and still apply for benefits in 2009). Although you can apply for benefits the first day after your employment ends (or your earnings are reduced below the allowable limit), I normally recommend that individuals wait to apply until sufficient proof of their disability is available. Since Social Security must be convinced that your condition will prevent you from returning to work for at least 12 months, or result in death, it is often hard for individuals to be approved if they apply for benefits shortly after employment has ended.

The exception is if you have been diagnosed with a terminal illness. When you have been diagnosed with a terminal illness, it is important to apply as soon as possible. When you apply for a condition that may improve, commonly the Social Security Administration will deny your application even if you are currently disabled. It may be determined that even though you are currently unable to work, your condition is expected to improve within 12 months. Before applying for benefits, I suggest that my clients discuss their options with their treating physicians, make sure that their treating physicians are supportive of their application, and also discuss the expected duration that their condition will prevent them from working. If it is unknown if the condition will result in the inability to work for at least 12 months, I normally suggest waiting to apply until closer to the 12 month mark.

It is always important that you communicate with your physicians throughout this process. You should find out if your doctors are going to support your application for disability, and whether they will be willing to provide information that is necessary to help you be approved. I also commonly ask that my clients have forms completed by their doctors before filing an application for benefits. This gives me a better idea of what your doctor thinks, and allows me to better determine if you have a condition that meets the disability requirements. It is important to communicate with your physicians that you would prefer to work, and that you are only pursuing disability benefits because that is your only option based on your limitations. I always encourage my clients to remind their doctors that they are willing to take any steps necessary to allow them to return to productive work in the future.

Even when everything is done properly for an application for disability benefits, it is a time-consuming process. The average time for a decision in Delaware is between 4 to 7 months on the initial application. Failure to provide all of the needed information to the Social Security Administration can result in delays, and failure to seek necessary treatment can result in a denial. If you are considering applying for disability benefits, I recommend that you contact my office for assistance at the earliest possible time. Although it is possible to pursue disability benefits without the help of an attorney, it is helpful to have an experienced person help navigate you through the process. Please contact my office if you would like a free initial consultation.

Relevant links:

• Social Security Listing of Impairments
• Delaware Medicaid Frequently Asked Questions
• Delaware Low Costs Healthcare Clinics
• Delaware Online Public Assistance/Medical Assistance Application

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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