At the Administrative Law Judge (ALJ) hearing stage of a Social Security Disability claim, Social Security will give you the option to choose the type of hearing you want to elect. Today, disability hearings can take place in person, over the phone, or by video teleconference. Many disability claimants are unsure which option is best for them, and choosing the right type of hearing may lead to additional stress in an already complex and time consuming process. Rest assured, the type of hearing you choose will not typically impact the outcome of your disability case. This is because the ALJ applies the same rules to every claim, regardless of the type of hearing you choose, and the ALJs are not supposed to “play doctor” by diagnosing disability claimants from the bench. However, choosing the right type of hearing for your particular case can help reduce stress on the hearing day, and put you in the best position to win your case.
This article explains the differences between hearing formats – phone, video, or in-person – the potential benefits of choosing an in-person hearing, and the key factors you should discuss with an experienced Social Security Disability attorney before making your decision.
The Crucial Stage of Your Disability Claim
The hearing stage before the ALJ is arguably the most critical part of the disability process. Approval statistics show that, while the majority of disability claims are denied at the application stage, and the vast majority of claims are denied at the reconsideration stage, a much higher percentage of cases are approved at the hearing stage before the ALJ. When your claim is assigned to an ALJ, you can look up the ALJ’s approval statistics, but it is likely that whatever ALJ is assigned to your case will have a much higher approval rate than claims at the reconsideration stage. Typically, the hearing before an ALJ is much more comprehensive and personal in nature, rather than sending forms back and forth with the agency. ALJs are also trained lawyers who arguably apply the rules more fairly than Social Security typically does at the lower levels of appeal. Finally, it is critical to obtain an approval at the ALJ stage, since a denial from the ALJ is very difficult to reverse.
Understanding Your Choice: In-Person vs. Phone vs Video Teleconference Hearings
No matter which option you choose, the hearing will still be conducted in the same manner. The judge will ask you questions about your disability and how it prevents you from working. The judge will also review all medical evidence and other information in your file, and take testimony from a vocational expert and possibly a medical expert. The ALJ will offer your attorney representative, if you have one, to ask you direct questions on the record and to cross examine the vocational/medical expert at the hearing.
The Traditional In-Person Hearing Format
An in-person hearing takes place at the Social Security Office of Hearings Operations (OHO) before an Administrative Law Judge. In the Bay Area, there are OHO offices in San Jose, Oakland, San Francisco, and San Rafael. The OHO offices are located inside of federal buildings in San Jose and Oakland, and are located within office buildings in San Francisco and San Rafael.
The drawback to an in-person hearing is that there are logistical issues that are not present for phone or video hearings, specifically the need to commute to busy downtown areas, paying for parking or navigating public transportation, and undergoing additional security screenings once you arrive at the building. The hearing offices in downtown Oakland and San Jose are in secured federal buildings that use security protocols that are similar to TSA. You will be asked to provide a current ID and go through metal detectors in order to access the OHO floor. Some disability claimants find that conducting a “practice run” before their hearing, which involves commuting from their home to the hearing office on the same day of the week as their hearing, at the same time, to learn the traffic patterns and find reliable parking, greatly relieves their stress on the day of the hearing.
While the commute, parking logistics, and increased formality are the potential downsides of choosing an in-person hearing, there are potentially significant benefits. In-person hearings are by nature more personal. If you have a visible disability (not all disabilities are immediately observable), the ALJ will have the opportunity to see how your condition impacts you in real life. If you do not have a disability that manifests physically, do not worry. ALJs are by law not supposed to diagnose disability claimants from the bench, and ALJs are sophisticated and trained lawyers who understand that not all impairments are observable from the naked eye. However, if you happen to have a condition that an ALJ can observe, such as a tremor due to Parkinson’s, or you require the use of an assistive device such as a walker, then it can be helpful for the ALJ to witness this limitation in real life. Also, an ALJ might have an easier time gauging your sincerity during an in-person hearing, which can help establish the credibility of your testimony.
The Phone Call Format
The phone hearing is the least formal of the hearing formats. There are several benefits to the telephone format. First, you can testify from your home, wearing comfortable clothes. You can take your medication, if needed, on your regular schedule without worrying about the impact on your ability to drive. If the hearing is running late, you’ll be able to wait in your home rather than in a Social Security hearing office. A phone hearing also allows you to avoid the commute to the hearing office and the security lines at the federal building. Another important factor to consider is that the ALJ will also likely be conducting the hearing from the comfort of their home too.
At the LaPorte Law Firm, we have conducted many hearings via telephone (telephone hearings are the default option in many cases) since they became widely available to our clients in March 2020 during the COVID pandemic. We were initially concerned about due process issues related to telephone hearings versus in-person hearings, and we had to consider the equally important issue of extreme delays caused by hearing office closures, causing our clients to have to wait more time than necessary to have their cases heard by an ALJ. At the time of the pandemic, Social Security offered our clients the option to elect a phone hearing, and those who chose to undergo a phone hearing and waive their right to an in-person hearing typically had their cases decided much more expeditiously than those who refused the phone option. After 6 years of representing our clients at phone hearings, we have not noticed any difference in approval rates between phone and in-person hearings, because ALJs primarily rely on medical evidence to make decisions in decision cases, rather than hearing testimony.
Video Hearing Format
A final option for your hearing is to elect a video format. If you choose a video hearing, you will be asked to provide your email address and the hearing office will send you a link to your Microsoft Teams video hearing. You will receive several reminders for the video hearing that contain a link to the meeting. You should be prepared to login to the meeting several minutes before the hearing is scheduled, just in case the ALJ is ready to start early. If the ALJ is running late, do not worry, as long as you are logged into the meeting you are in the right place. You will see a screen that says “Please wait for the organizer to let you in” or similar. The ALJ’s assistant will let you into the hearing when the ALJ is ready to start, so make sure you are in a quiet, private, well-lit location when it is time to start the hearing. You should also avoid using bluetooth devices, since they can cause feedback issues. If you plan to use headphones you should use the wired-in kind.
Video hearings have some of the benefits of phone hearings, in that they are conducted remotely and allow you to testify from the comfort of your home. In addition, video hearings also have the advantage of being more personal in nature than phone hearings, since the ALJ will be able to connect a face to the file. However, unlike the in-person hearing, the ALJ will not be able to observe your posture, gait, or other physical manifestations of your disability. As with the phone and in-person hearings, the Social Security rules that apply to your case are exactly the same if you choose a video hearing.
The Strategic Advantages of Electing an In-Person Hearing
In-person hearings are more personal in nature, and in some cases the ALJ may benefit from seeing your condition in the real world before making a decision. Also, in some complex cases, the personal nature of the in-person hearing can help establish the credibility of your allegations, as some nuance can be lost during remote phone or video hearings.
Mitigating Technical Difficulties
If you choose to undergo an in-person or video hearing, you should mitigate any potential technical difficulties beforehand by making sure your phone is fully charged, or that your wifi connection is reliable. You should also ensure you have access to a quiet, private location where you can testify. Make sure the room is free from any potential sources of loud noise, and that no one will enter the room while you are undergoing your hearing.
Claimants with Limited Access to Reliable Technology or a Private, Quiet Environment
If you do not have reliable access to wifi, or a private area where you can testify without other people listening, you should consider electing an in-person hearing. This mitigates any potential technical issues. In the unfortunate event that your hearing has technical difficulties, do not worry, your hearing will be postponed and the judge will schedule a new time for a hearing.
Key Factors to Discuss with Your Disability Attorney
Emphasize that hearing format decisions should be made in consultation with an experienced disability attorney. An attorney with experience practicing before your local ALJs, as well as with phone and video consultations, can go over your specific situation and offer advice about which hearing type best suits your case.
The Process of Requesting an In-Person Hearing
After you file your request for hearing, you will receive a Remote Hearing Agreement from your local OHO with options for remote, telephone, or in-person hearings. If you wish to elect an in-person hearing, you would check the box “I do not agree to an online video hearing” and “I do not agree to a telephone hearing”. If you want to use a remote hearing format, you would provide either your cell phone contact for the day of the hearing, or your email address for a video hearing. Once OHO receives this form, your case will be scheduled with a judge, and the Notice of Hearing will reflect the manner of appearance.
Final Recommendations
If you have made it this far into the article, you are already well equipped to make the best decision for the manner of appearance for your hearing. While the hearing process can be stressful, many clients find that having the opportunity to actually talk to a human being about their situation is much better than communicating with Social Security via boilerplate forms. Regardless of what type of hearing you choose, the ALJ is still applying the same five step sequential evaluation that applies to every case. By carefully considering the best type of hearing that fits your situation, you are preparing yourself for success.
If you are unsure what type of hearing to choose given your circumstances, give us a call to schedule a free consultation.