The Role of an ALJ Judge in Disability Hearings
The headline of this article is a bit of a misnomer, since ALJs (administrative law judges) are not trying to “trick” you during testimony. The ALJ plays the most important role at the administrative hearing. Their role is not to pose “trick” questions at the hearing. Rather, it’s to make the final decision on the issue of disability, and ALJs are given broad discretion to ask questions, consider all testimony of Social Security Disability Insurance (SSDI) claimants and vocational/medical experts, legal briefs from the appointed attorney, and to make a decision whether a person is disabled under Social Security regulations. This is a time-consuming job to perform day to day, and ALJs make hundreds of decisions per year, so the ALJ almost certainly doesn’t have time to come up with “trick” questions.
However, this article will discuss some of the common so-called “trick” questions that may confuse people testifying at their disability hearing, especially those who have never been to court before or spoken with a judge. While you may feel that the SSA (Social Security Administration) system is set up to trick or confuse you into offering adverse testimony, as long as you are responding honestly to the specific call of the question, no question is a “trick” question.
Common “Trick” Questions from Disability Judges
No two disability hearings are the same. Every ALJ has a different style and level of formality in the hearing. Some judges conduct extremely thorough hearings that last over 1 hour, while other judges conduct relatively brief hearings that last less than 20 minutes. Some judges do all of the questioning, while other ALJs ask the attorney-representative to conduct the majority of the direct examination of their clients. Some judges are friendly and informal, while others have an intimidating manner similar to Judge Judy and sound generally skeptical.
Regardless of the disposition of the ALJ assigned to your case, it’s always in your best interest to approach your testimony the same way: with honesty. Remember, you are under oath under the penalty of perjury, and nothing frustrates an ALJ more than dishonest testimony. No matter the question from the ALJ, always answer honestly and avoid becoming defensive. As we get into the examples below, notice how important it is to only answer the specific question posed by the ALJ and to avoid volunteering additional information that is unresponsive to the call of the question.
If you do not know the answer to a question, do not try to guess. You can always say “I don’t know,” so long as that is the honest answer. If you do not understand a question posed by the ALJ, take the time to politely ask the judge to repeat the question. Remember that you want to make the ALJ’s job as easy as possible, and the best way to do that is to provide only the information the ALJ asks for, nothing more. This strategy also has the effect of adding credibility to your testimony, since the ALJ will appreciate honest, direct answers to the questions, and tend to believe the most important aspects of your testimony regarding how your condition impacts you.
Below are the common questions ALJs ask during disability hearings:
Do you drive?
This question typically comes toward the beginning of the hearing. Many disability claimants testifying for the first time wonder, “Is this a trick question? If I am able to drive, does that mean I’m not disabled and my case will be denied?”
The correct answer to this question is, as always, whatever the truth is. Can you drive? If yes, just say yes on the record. The judge will likely follow up the question with “Does your medical condition limit your ability to drive in any way?” After this follow-up question, you’ll have the opportunity to provide additional testimony about how your medical condition limits your ability to drive. As you can see, it’s important to allow the ALJ’s questions to progress through the hearing. By answering the first question — “Do you drive?” — with a one-word direct answer, the ALJ can move on to the next, more important question” “Is there anything about your medical condition that limits your ability to drive?”
How do you spend a typical day from the time you go to bed?
Here, it pays dividends to avoid defensiveness. This question may sound incredibly invasive to your personal privacy. However, it’s important to remember the purpose of the hearing is to let the ALJ gain a deeper understanding of how your disability impacts you on a day-to-day basis. The ALJ is not trying to embarrass you. This question lets the ALJ peek behind the curtain of medical records, doctor’s reports, and tests, and hear from you directly about how your condition impacts you in the following mundane situations: waking up, getting out of bed, remembering to take medications, performing routine bathing and hygiene, making breakfast, grocery shopping, cleaning tasks such as laundry, mopping, sweeping, cooking tasks including chopping vegetables, resting during the day, etc.
While the ALJ has access to a typically voluminous amount of medical records, these records often do not paint a picture of how your condition impacts you more specifically on a day-to-day basis. Unlike the question above about whether you drive, this question calls for a much longer narrative answer.
In the lead-up to your hearing day, try to take notes about how your condition impacts you. Do you have a recliner that helps alleviate your back pain? Note how much time you spend in a typical day in that recliner, how high you elevate your legs in relation to the rest of your body, etc. Do your pain medications wear off during a certain period of the day? If so, what time does this typically happen? Do you have a family member who assists you with basic activities of daily living such as doing the dishes or taking out the trash? Note that day-to-day assistance prior to the hearing so that you will have useful examples for the ALJ.
Do you engage in hobbies?
This is your opportunity to show your individuality to the ALJ, and to provide yet another example of how your disability has impacted your life. Did you use to go deep sea spearfishing before your injury? This is your chance to tell the judge about your passion for a hobby that you can no longer perform.
It’s okay to tell the ALJ about hobbies that you still engage in, such as gardening or knitting. It’s important to remember the Social Security definition of disability: the inability to sustain full-time work, eight hours per day, five days per week, with few unscheduled absences per month due to a disability. The mere fact that you garden a few hours per week, or spend a few hours per day knitting, does not render you ineligible for the disability benefit. You do not need to be bedridden to have a recognized disability under Social Security rules. It’s okay if you engage in hobbies or are capable of leading a relatively “normal” life in spite of your disability.
How long can you sit, stand, or walk?
An ALJ may pose this question in the following way: “How long can you sit/stand/walk at one time without needing a break?” With this question, the ALJ is trying to assess your maximum residual functional capacity (RFC), or what type of work you think you are capable of (sedentary, light, medium, heavy, or very heavy). This is a “tricky” question because who actually measures their ability to sit, stand, or walk in specific units of time? For this reason, your response to this question can be an estimate. You should refrain from providing an overestimate of your abilities (e.g., “I can stand forever, Your Honor”) or underestimating your abilities (e.g., “I can only sit for a few minutes”). So long as you are giving your best estimate in response to this question, you are answering the question correctly.
Also, let’s say you have lumbar sciatica that flares up when you sit, but seems to subside when you walk. It’s perfectly fine to tell the ALJ that you have no problems walking for an hour, but can only sit for 30 minutes at a time before needing to get up and move around for 15 minutes before sitting down. In the lead-up to the hearing day, try to note your standing, walking, lifting, and carrying capacities in terms of time and weight. Also note that some things are heavier than you may think. For example, a gallon of milk weighs 8 pounds.
Why did you stop working? Why can't you work at a simple, one- to two- step sedentary job?
One of the key questions at the disability hearing is why you stopped working. You should have your answer prepared in response to the question “Why did you stop working in [month], [year]?” Another question you may want to consider in advance of the hearing is “Hypothetically, could you work at a job that required very little lifting or standing, and was mostly performed in a sedentary office setting with no production quotas?”
The under age 50 rules in Social Security disability cases involve a much greater burden of proof, since the ALJ must find an inability to perform even the easiest employment in the national economy on a full-time basis. Because the ALJ must decide whether you could hypothetically perform easier work than the jobs you performed in the past, this question elicits one of the crucial evaluations that the ALJ needs to make.
It’s important to note that the ALJ must deny a case if there are any occupations available in the national economy. This evaluation means that the ALJ does not consider who is hiring in your local economy or potential discrimination you feel you may face as a person applying for work with a disability. Therefore, it’s not sufficient to answer this question with a “who would hire me?” response. You should consider the specifics of what would happen to you physically or mentally if you tried to return to work. Do you think you would miss work on an unscheduled basis if you tried to go back? If so, why? Do you think your condition would cause you to be off-task during the day due to pain? Would you need to leave the workplace early because of a medical condition? Note that the ALJ cannot consider whether your doctor’s appointments alone would prevent you from working, only the symptoms you may reasonably face due to your disability.
When was the last time you used alcohol or illegal drugs?
The ALJ must consider whether drugs or alcohol (or even marijuana) plays a role in your disability. If the ALJ finds evidence of drugs or alcohol in your medical records, and that the drugs or alcohol is material to your disability claim, this can be a basis for a denial.
The drug and alcohol “materiality” determination typically plays a role in cases involving mental health. For example, if you have schizophrenia and you use drugs and alcohol, the ALJ could deny your case on the basis that the drugs and alcohol are exacerbating your symptoms, and that if you refrained from drugs and alcohol, your symptoms would not be severe enough to keep you from working. In cases involving physical impairments, for example, lumbar stenosis causing an inability to walk effectively, the use of drugs and alcohol is not necessarily “material” to the back pain.
However, if you testify to the ALJ that you are clean and sober, yet the record shows ongoing drug abuse, the ALJ may use the evidence of drugs to make an adverse credibility finding regarding your testimony. In other words, tell the judge the truth in response to this question, and the judge will be more likely to believe the rest of your testimony. One of the biggest mistakes people make is to lie about nonmaterial issues, harming their credibility on more important portions of the testimony.
How often do you experience your symptoms?
Try to put your response in terms that the judge can understand and apply to your case. Does your pain impact you at all hours of the day? Every day of the week? If so, in a typical week, how many days do you have pain? Do your symptoms typically last for minutes or hours? Try to give more explanation here than an equivocal answer such as “it depends” or “my pain is completely unpredictable.” The ALJ cannot use these answers to craft a decision, but if you put your responses in terms that are easy to understand and apply, the ALJ will have an easier time approving your case.
How to Prepare to Answer Trick Questions from Disability Judges
Consider these tips to help you properly prepare for any “trick” questions the ALJ may ask during your hearing:
Understand the purpose of the questions
As discussed, the purpose of ALJ questions are not meant to “trick” you into testifying to a bad fact about your case. The hearing is an informal “fact finding” proceeding that does not use rules of evidence like in civil or criminal proceedings. You do not need to confer with your attorney before answering each question like criminal defendants you see on TV or in the movies. The hearing is your chance to explain to the judge how your condition impacts you on a day-to-day basis, and to personalize the process for the judge by putting a face to a file. If you treat the ALJ like a new primary care physician who has never met you or read your medical records, and provide only the information that the new doctor needs to do their job, you are in a great spot at the hearing.
Be consistent and honest
The golden rule in Social Security cases is to always be honest. ALJs speak to thousands of disability claimants and have heard everything. They can sense when a person is providing straightforward, honest testimony. Treat them like human lie detectors.
Avoid exaggeration or minimization
You don’t want to give the ALJ an excuse to deny your case by offering inconsistent testimony filled with discrepancies. For example, if the ALJ asks you what you do on a typical day, refrain from saying “I don’t do anything,” unless that answer is the actual truth. If you state “I don’t do anything,” the ALJ will follow up with the question “Well, if you don’t do ANYTHING, how do you get food, how did you get to this doctor’s examination that I’m reading as we speak from one month ago?” So the moral of the story is that honesty is always the best policy at the administrative hearing.
Anticipate common questions
You have read this far into the article, so you are already vastly more prepared than the average person awaiting a disability hearing. To that end, you should prepare for common questions that arise at the disability hearing. These questions include:
- When was the last time you worked?
- Why did you stop working?
- What medical condition is preventing you from working now?
- What do you do on a typical day, from the time you wake up to the time you go to bed?
- What medications are you taking?
- Do your medications have side effects?
- What would prevent you from working XYZ job?
- How long can you sit/stand/walk at one time without taking a break?
- What is the treatment plan your doctors are recommending going forward?
Practice Answering Questions
It’s important to practice your answers with your attorney beforehand so that they your attorney can offer feedback and give advice about how to present to the ALJ. Download our eBbook with more examples of questions at your hearing, and watch our free webinar that contains more information about the hearing process. The more prepared you are, the more comfortable you will feel on the day of your hearing.
Use specific examples
Specific examples help elucidate for the judge how your condition impacts your life. As a hypothetical, let’s say that your medical condition causes brain fog and confusion, and that you got lost on the way home from the store in a neighborhood that you have lived in for your whole life. Such an example is important to relay to the judge, since it drives home the impact of your confusion on your day-to-day life. Or let’s say that your spouse now handles all of the household bills and keeps track of your appointments due to your forgetfulness. This example allows the judge to hear how you and your family are impacted by your condition, and these examples are unlikely to make their way into your medical records.
Communicate effectively with your lawyer
Your attorney has access to all the medical records and other documents an ALJ reviews at the hearing. To prepare for the hearing, the attorney will conduct a pre-hearing preparation appointment to discuss the hearing process and the types of questions posed by the ALJ. It is extremely important to discuss all of your impairments with your attorney and to raise any issues that you are aware of that may impact your disability case. No attorney wants to hear certain facts for the first time during direct examination with the ALJ. If there are so-called “bad facts” in your file, such as a history of drug and alcohol abuse, working “under the table,” or medication noncompliance, address these issues early with your attorney well before the hearing.
Situations are never black and white, and most “bad facts” have a perfectly valid explanation or mitigating circumstances that help reduce the negative impact on your case. However, if the attorney is not aware of the issue, they cannot help you address it before the judge.
Keep calm and composed
In life and in disability hearings, it always pays to stay calm, cool, and collected. Even if you caught the ALJ on a bad day (ALJs are people too and have bad days like the rest of us), maintain your composure. A hostile disability witness does not present well before an ALJ. Also, if you are calm in the face of an adversarial judge, an appeals court reviewing an unfair denial will have a developed record of testimony upon which to grant your appeal. Hopefully, your case does not reach higher levels of appeal, but just in case, you want to have a developed record with calm, clear testimony.
Be prepared to discuss sensitive topics
Sensitive issues are likely to arise at your disability hearing. Remember that the hearing is closed to the public and the transcript only goes into your private Social Security file. There are penalties against releasing any of the information discussed at your hearing since the record contains sensitive medical records. Extremely private and personal information will be discussed, e.g., your mental health; side effects of medication; history of suicide attempts or psychiatric hospitalizations, if applicable; restroom frequency and instances of incontinence; the impact of disability on family members and friends, etc.
While some people appreciate the ability to actually speak to a human being at the hearing rather than the faceless bureaucracy of the Social Security Administration, some people feel that the hearing is an invasion of privacy. Keep in mind that the ALJ is not there to judge you or to embarrass you. They are just doing their job, which involves conducting a detailed examination by eliciting relevant testimony about your life and activities of daily living since your disability began.
Although testifying before an ALJ may seem daunting, the more you understand the purpose of the hearing and the types of questions that an ALJ may pose, the better prepared you will feel on your hearing day. As always, honesty is the best policy. Treat the ALJ with deference and respect, and maintain an open dialogue with your attorney before the hearing. By reading this guide, you are already in a great position to succeed at the hearing.
Have questions? Give our office a call to schedule a free consultation.