The thought of testifying in front of a judge can be intimidating. After waiting months or even years for their day in court, most people applying for disability do not know what to expect, or have any idea about the types of questions they will be asked. For most of our clients, the hearing will be the first time they’ve talked to a judge or interacted with the legal system. Understandably this can be a stressful and confusing time, but we work zealously to make sure our clients are confidence and prepared on their hearing day.
After representing clients in thousands of disability hearings for over 35 years, we have come up with a few general principles based on experience to set our clients up for success. While each individual case is unique, and no two hearings are alike, in this article we try to answer some frequently asked questions about the process and offer basic tips to set yourself up for success.
- When answering questions from the judge, be direct and concise
- Be Honest – Even if you think your answer might harm your case
- If you don’t understand a question posed by your attorney or the judge, ask for the question to be repeated
- Be prepared
- Contemplate your answers to key questions
The best piece of advice for a person set to testify in front of a judge is this – only answer the question that the judge has asked, and do not volunteer any additional information. Why is this important? It establishes your credibility, plus it makes the judge’s job easier. The fastest way to derail a hearing is to offer long, narrative answers to yes or no questions. Consider the job of a disability judge. In order to do their job, a judge has to take in a tremendous amount of information in a short period of time. At every hearing, the judge will have a disability claimant’s electronic file in front of them on their computer monitor. This file contains every piece of medical evidence from the time a claimant’s disability began. The file also contains detailed work histories, earnings records, sworn statements from the claimant and third parties, detailed questionnaires, opinion evidence from treating doctors and Social Security consultative examiners. Often, a file contains thousands of pages of evidence. The faster the judge can get through the background, the faster you’ll get your chance to explain the important details of your situation. Judges are human beings like the rest of us, except they hold more power than the average citizen and every day they make decisions that have a huge impact on people’s lives. You want the judge to be happy and you want to leave a good impression by providing direct answers without forcing the judge to redirect you.
As an example, if the judge asks you the following question: “Do you have a valid driver’s license?” – the answer is either “yes” or “no”. Do not make the judge’s job harder by offering a long answer about how often you drive, or if your condition prevents you from driving at night, or if you can only drive short distances, or if you haven’t driven a car since your disability began. The judge will give you a chance to testify about the important aspects of your medical condition and how it impacts your ability to work and perform activities of daily living. It’s important to trust the process and be patient while the judge or your attorney establishes the background facts. On that note, some judges ask your attorney to ask most of the questions, in which case the advice is still the same – focus on the call of the question and only answer the question that is asked. Which leads to the second and equally most important takeaway:
In disability hearings as in life, honesty is always the best policy. The second most efficient way to derail a disability hearing is for the judge to think you are not being honest about your medical condition. Not to mention the fact that at the beginning of the hearing you will raise your right hand and swear an oath to tell the truth under penalty of perjury, which is another good reason to be honest.
Keep in mind, the purpose of a hearing is not to trick you or get you to admitting a bad fact. Rather, a hearing is your opportunity to explain your situation in detail and provide the judge with an insight into your daily life that is not obvious from merely reading evidence in the record. When answering questions from the judge or from your attorney, try not to focus on how your answer will sound to the judge, or whether your answer is good or bad for your case. Focus instead on being straightforward and up front with the judge. You do not need to be totally incapacitated to be eligible for the disability program. The burden is to prove an inability to perform consistent, full time gainful activity forty hours a workweek, eight hours per day, five days per week. People receiving disability benefits are able to drive, cook, clean, shop, and perform many basic activities of daily living. Just because you can do some basic activities in a typical day does not mean you are able to work full time. When you are honest with the judge about activities you are capable of doing, you establish credibility, and credibility can make or break your case.
Take the time to ask the judge or your lawyer to rephrase a confusing or inelegantly worded question. Things go awry when you make guesses during hearing testimony. The hearing is being recorded, so the transcript should make sense and be understandable for anyone reviewing it. If you don’t understand a question, politely ask the judge to repeat it. You do not need to know medical or legal terms at the hearing and it’s okay if you can’t remember a specific piece of information. Don’t know the answer to a specific question? That’s okay! The judge will move on or ask your attorney to provide the answer. Sometimes memories fail us and that is perfectly normal, but with that being said, it’s always important to have some basic information memorized prior to the hearing.
One of the best ways to ensure a smooth hearing is the ability to recite key pieces of information when asked. Remember, the judge has a giant electronic file in front of them containing thousands of pages of documents. If you can help the judge understand important information without making them search for it, you’re making their job easier.
What information do you need to prepare? You should study your resume and be familiar with all the jobs you have performed in the last 15 years. You may be asked about past job duties and the physical requirements at each job. This is called “past relevant work” for Social Security purposes. Part of the judge’s job is to decide whether you can perform any of your “past relevant work” given your impairments. You should also be familiar with the last day you worked, why you stopped working, your alleged onset date (the date you told the Social Security Administration you became disabled), the treatment you have received since you stopped working, your medications and associated side effects, and the primary reason/s you cannot work. You don’t need to have your entire file memorized, but it leaves a good impression when you can recall important pieces of information.
Judges do not ask the same set of questions at every hearing, but some questions are commonly asked. You should think about the answers to the following questions prior to your hearing:
- Why did you stop working at your most recent job?
- Why do you think you are disabled or unable to work?
- What would prevent you from returning to XYZ job you performed in the past?
- What do you do on a typical day from the time you wake up to the time you go to bed? (Note the word “typical”, meaning not your worst day and not your best day).
- Common questions for people with physical impairments: what is the heaviest weight you can lift and carry, and how long you can sit, stand, and walk before needing a break?
- How long does the break last? Do you require an assistive device like a cane or walker? Was it prescribed? By whom?
- Common questions for people with mental impairments: How does your depression/anxiety/PTSD impact you on a day-to-day basis? Do you have good days and bad days? Have you tried to commit suicide or had thoughts of suicide? Have you been psychiatrically hospitalized or placed on an involuntary 51/50 hold? When and where? Since your alleged onset date have you used illegal street drugs or alcohol? Marijuana?
- Do you get help performing cooking, cleaning, chores, errands? If so, who helps you and why?
- Do you have good days and bad days? How often? Can you characterize a good day versus a bad day?
- Has your health gotten worse, better, or stayed the same since the alleged onset date? Describe.
- Is there anything you want me as the judge to know that we haven’t covered? (This is not a trick question and not all judges ask it. They are just providing an opportunity to provide information that did not get addressed. It’s okay to say no to this question.)
FAQs about disability hearings
- How should I dress?
- How long will the hearing last?
- When will I find out whether the judge approved or denied my case?
- I speak limited or no English, will I be provided a translator at my hearing?
- Do I need an attorney?
Due to COVID, there’s no need to dress up. All disability hearings are now conducted by telephone, so you can testify from the comfort of your pajamas. Please refer to our helpful tips and hints for testifying at a telephonic hearing, which has it’s own nuances that are different than in-person hearings.
The answer depends on the judge. Some judges hold short 15-minute hearings. Other judges hold hearings for over 1 hour depending on the complexity of the case. On the day of the hearing be prepared to prepare with your attorney an hour before the hearing and expect that the hearing will last up to an hour. We will be able to give you a better estimate once the judge is assigned to your case.
Judges typically do not tell claimants whether the case is approved or denied on the day of the hearing. Your decision will arrive via mail roughly one to two months after the hearing. There are limited circumstances in which the date of a disability hearing can be sped up. However, wait times are fortunately dropping due to Covid-19 for claimants willing to testify via telephone call our office today to discuss whether these limited exceptions apply to your case and to discuss the option of agreeing to a telephone hearing.
Yes, if you are unable to communicate in English. However, if you speak English as a second language but are generally able to communicate, consider testifying without a translator. Judges want to hear from you directly without speaking through a third party translator. Talk to your lawyer before the hearing before making the decision to request an interpreter.
Probably. Government data shows that hiring a lawyer to represent you at your hearing improves your chances of success by almost 40%. If you are waiting for your hearing and you are unrepresented, it is always critical to consult with a lawyer who specializes in Social Security law to discuss the merits of your case. Because lawyer’s fees are contingent on winning the case and an award of back pay, with a fee maximum of $6,000, it is in your best interest to hire an expert.Conclusion
We take pride in demystifying the disability process and reducing stress for our clients. Once retained, we work hard to present your case in the best light to the judge. Prior to the hearing we diligently obtain all relevant medical records and other supporting documents for submission to the judge. After a judge is assigned to your case, we will hold a practice hearing so you know what questions to expect and to answer any questions our clients may have. We also submit written briefs to the judge summarizing the facts of your case and how they fit into Social Security regulations. And on the day of the hearing we will be by your side every step of the way.
Call the LaPorte Law Firm today for a free consultation.