Who Attends a Disability Hearing and What Is Each Person's Role?
The Administrative Law Judge runs the disability hearing and there are other key players in a hearing
There are at least three people present at the Hearing: the Administrative Law Judge (ALJ), you (the claimant) and a court reporter. Additional people present may include your disability representative (if you have one), a Medical Expert (ME) (if the judge requests one), a Vocational Expert (VE) (if the judge requests one), and any witnesses.
Remember, the purpose of the Hearing is to determine whether or not you meet Social Security’s definition of being disabled. The primary tool that Social Security uses to determine if someone meets their definition of being disabled is the 5-step sequential evaluation process. So the entire Hearing is basically an opportunity for the disability judge to review the facts of your case utilizing this sequential evaluation. But the judge does not do this alone; rather, he or she can enlist the assistance of expert witnesses. And, of course, the judge will be interested in obtaining testimony from you and listening to your representative’s theory of disability.
Let’s look more closely at each person’s role
Administrative Law Judge (ALJ)
The ALJ’s job is to determine whether you are disabled under Social Security rules. They are the single decision-maker at a disability Hearing. They preside over the Hearing and ensure it proceeds in a manner that enables them to make an informed decision. Judges have very different styles and are given considerable latitude in terms of how they question, how much interaction with you, how much interaction with your disability attorney or representative and the general pace and flow of the Hearing.
The Court reporter’s job is to create a transcription of the disability Hearing proceeding. All disability cases are also recorded (audio only) and the Court reporter ensures this recording is done properly. They generally do not speak during the Hearing, but assist with some administrative aspects of the Hearing.
Your job is to answer the questions posed by the Judge, the Medical Expert, the Vocational Expert, or your disability attorney or representative. You will ideally meet with your representative prior to the Hearing to ensure you understand the objective of the Hearing, as well as what to expect at the Hearing. It is critical that your testimony is consistent with your medical evidence, and that you describe your work history in a manner that helps your claim rather than hurts it. Your representative will fully prepare you for the Hearing to ensure you emphasize important points and de-emphasize (or avoid) points that can hurt your claim.
Obviously being honest in your answers is critical (and you will be under oath). But providing unnecessary details can tend to distract from the main thrust of the theory as to why you should be approved for benefits. In our opinion, it is better to be laser-like in your focus, rather than talk about a dozen things that are irrelevant to the salient facts of your case. You should, of course, be professional and respectful in all answers provided.
Disability Attorney or Disability Represenative
Most claimants utilize the services of a disability attorney or disability representative. The goal of the disability attorney or representative is simple: get your claim approved. Prior to the Hearing, the attorney or representative will develop a theory of disability, which is an argument presented to the judge in writing prior to the Hearing and in person at the Hearing. Your attorney or representative ensures the facts of your case are brought out fully so the judge can make an informed decision. He or she is your advocate and ensures the Hearing is moving in a direction that supports your case.
Vocational Expert (VE)
The VE is an expert at classifying jobs that are performed and available in the national economy. The Administrative Law Judge (ALJ) has the option to schedule a Vocational Expert to attend your Hearing. Some judges like to have a VE present, while others don’t. It is solely the judge’s preference, and oftentimes reflects the complexity of the case. The VE generally participates in person, but can also participate telephonically. They help determine whether there are jobs you can perform in light of your medical limitations. The VE’s testimony does not come into play during the Hearing until the ALJ is considering the 4th step of the 5-step sequential evaluation process.
At this step, the ALJ determines whether you can perform any work you have performed during the Past Relevant Work (PRW) period. In making this determination, the Vocational Expert classifies the work you have done during this 15 year PRW period, including the skill level required in each job and the exertional level required in each job. For example, a Nurse works at the Medium exertional level and the position is considered Skilled, while a Security Guard works at the Light exertional level and the position is considered Semi-Skilled. Once all of your PRW has been classified, the adjudicator must then determine whether you have the functional ability to perform any of your past work.
They use hypothetical scenarios, such as: “Could someone who has COPD with the inability to exert himself perform construction work?” So the judge relies on the VE’s expertise in understand whether you can perform your past work and, at Step 5 of the sequential evaluation process, the VE opines as to whether or not there is any other type of work you can do in light of your medical conditions. The VE will identify specific jobs from the Dictionary of Occupational Titles (DOT) that he or she believes you can perform. If the VE does identify jobs you can perform, the ALJ will consider this in rendering your decision, and it is likely you will be denied. Your representative will have the opportunity to “cross” the VE by asking the ALJ to also consider additional limitations that are reflected in your medical evidence in an attempt to erode the available employment base. This crossing process is critical because if the ALJ agrees with the arguments put forth by your attorney or representative you will likely be found disabled. If the cross is not well-executed or compelling, the VE’s opinion will likely prevail and you will likely be denied.
Medical Expert (ME)
Like the VE, a Medical Expert (ME) is an expert witness summoned by the Administrative Law Judge (ALJ) at his or her discretion. Fundamentally, the ME’s role is to help the ALJ understand the technical nature of your medical diagnosis and translate your symptoms into functional terms of what you can and cannot do. The ALJ will typically request the assistance of an ME at a Hearing when the medical diagnosis is complex. Some judges like to have an ME present, while others do not. The ME generally participates in person, but can also participate telephonically.
The ME’s testimony is limited to medical information only. He or she is not allowed to opine on any other matter. Additionally, the ME is not able to perform tests or otherwise examine you during the Hearing. The ME’s role is strictly limited to helping the judge understand the medical evidence in the file.
We estimate that only 5% of Hearings include participation of a third-party witness, such as a neighbor, colleague, family member, etc. The reason is simple: their observations of your symptoms, while they may be interesting, do not matter. What matters is your medical records, so the judge relies heavily on the medical evidence in your file. In certain cases it can help to have a spouse or former colleague who has specific knowledge about your impairments testify on your behalf.
If you choose to do this, you or your representative should request the judge’s permission to include them at the Hearing. Judges have the option to decline your request to bring witnesses. Judges can also not solicit or consider witness testimony during the Hearing. It is not common to bring your own doctor to your Hearing because the doctor’s opinion is already (or should be) included in your medical evidence, which the judge has access to.
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