What Should I Avoid Saying or Doing at My Disability ALJ Hearing?
There is no response that you should “avoid saying” when testifying at the hearing before an administrative law judge (ALJ.) So long as you are responding to the ALJ questions honestly and in a straightforward manner, without volunteering any additional information, and only responding to the judge’s question, you are setting yourself up for success at the disability hearing.
That said, you should refrain from expressing frustration with the ALJ or the length or unfairness of the disability process. You should also avoid putting the ALJ on the spot, for example by asking if them if they have read your medical records. The purpose of the hearing is for the ALJ to hear from you directly regarding your disability and how your symptoms prevent you from working. This involves direct questioning regarding your day to day activities, treatments you have received, the reasons you stopped working, what medications you take and whether there are side effects to these medications, and whether you receive help around the home for basic activities such as cooking, cleaning, laundry, and shopping.
This article will discuss the basic general strategy for testifying at the hearing: answer the question posed by the ALJ without volunteering any additional information, be honest with your answers without embellishment or downplaying your disability, and say you don’t know if you honestly do not know the answer.
Understanding the Stakes of Your Disability Hearing
Disability hearings are by nature extremely high stakes. By the time you are testifying at your hearing, you have waited two or three years to get in front of a judge. Financially, tens of thousands of dollars are on the line, not to mention a substantial ongoing monthly disability benefit and automatic Medicare enrollment.
The ALJ hearing is the first time you have the opportunity to explain your situation in detail to someone with the power to overturn all the prior denial decisions at the initial and reconsideration stages. In addition, a denial by the administrative law judge has serious consequences, as obtaining a reversal or remand from the Appeals Council or a federal district court judge is incredibly challenging and time-consuming.
Statistically, the best opportunity for a favorable decision is at the hearing level before the ALJ, and so many factors are outside your control, such as which ALJ is assigned to your case, or whether a fair or unfair Medical Expert is hired to testify at the hearing. Reasonably, many disability claimants are overwhelmed by the unknowns and stressed out by the prospect of testifying before someone who holds so much power over their lives and financial prospects. However, if you take the time to prepare and understand the role of the ALJ and the various players who will be present at your hearing, you will take some of the edge off of hearing day and put yourself in a position to get your case approved.
The role of the administrative law judge
In the prep sessions that we typically conduct two months prior to the hearing, many of our clients find it useful to understand the role of the ALJ at the hearing and their general job duties. This helps to demystify the hearing process and helps our clients understand that the ALJ is just an individual performing a job, albeit an important and powerful one.
So, what does the administrative law judge do at the hearing? An ALJ wears many hats. First, they are an employee of the Social Security Administration (SSA) who conducts “hearings,” which are similar to mini-trials, when disability claimants disagree with determinations made by the SSA.
In order to appear in front of an ALJ, you need two denials: the first at the initial application stage, and the second at the request for reconsideration stage. Without a denial at the initial and reconsideration stages, the ALJ will not decide your case. As most ALJs will advise disability claimants, the ALJ was not involved in the initial and reconsideration denial decision. They will make their own, independent decision based on all the evidence in the record and the testimony at the hearing. The ALJ is under no obligation to adopt the unfavorable determinations by Disability Determination Service (DDS) adjudicators at the lower levels of the process.
The ALJ is also responsible for conducting a full and fair hearing, which involves taking your testimony about your work history and medical conditions, and reviewing all relevant medical evidence and opinion evidence submitted in support for your case. They will also allow your attorney to raise objections, submit a pre-hearing brief summarizing the facts of your case as they relate to Social Security disability regulations, conduct direct examination to elicit favorable testimony from you during the hearing, and cross-examine any vocational or medical experts appointed by the ALJ prior to the hearing.
During and after the hearing, the ALJ has a wide range of discretion. They can either approve a case (fully favorable decision), deny a case (unfavorable decision), or approve a case but for a different period of time than alleged (partially favorable decision). They may also decide to hold a supplemental hearing if they do not have enough information to make a determination after the first hearing. Finally, the ALJ may dismiss a case if there is an unexplained no-show or if the claimant requests a dismissal.
Why credibility is your most valuable asset in a Social Security claim
“I respect those that tell me the truth…no matter how hard it is.” — Michael Corleone
Like Michael Corleone, every ALJ must be treated with respect. The quickest way to derail a hearing is to get caught in an obvious lie. You are not expected to know medical terms during your hearing, or make legal arguments, but you are expected to testify truthfully. In fact, the ALJ will ask you to take an oath under the penalty of perjury before you begin your testimony. While prosecutions for perjury at disability hearings are exceedingly rare, denial decisions based on less than credible testimony are not.
Consider the ALJ’s job. They are tasked by the Social Security Administration with making hundreds of disability decisions per year. With the use of electronic medical records, every individual record now spans thousands of pages. ALJs are dealing with stressed-out disability claimants and adversarial disability attorneys, and are provided increasingly limited resources in the form of attorney advisors and other critical support staff.
How do you make an ALJ happy at the hearing? By testifying only to the truth, within the scope of your personal knowledge, without making them redirect you or question whether your testimony is fully credible. While medical records are the most important evidence that the judge will consider in their decision, the credibility of your testimony also plays a major factor. If the ALJ catches you in a small embellishment, the rest of your testimony on the most important topics will be called into question.
The ALJ is relying on you to fill in the gaps, as medical records often do not describe in detail your day-to-day activities. The hearing is the judge’s opportunity to hear from you, in your own words, how your condition impacts your ability to perform basic activities of daily living. If you take nothing else away from this article, remember to tell only the truth at the hearing.
How the ALJ evaluates your testimony alongside the medical evidence
The ALJ will evaluate your testimony about the intensity and persistence of your symptoms, and whether this testimony is consistent with the overall objective medical record available to them at the time of the hearing.
For example, if you testify that your lumbar spine condition causes problems with standing and walking or lifting heavy objects, the judge will consider this testimony in conjunction with your treatment record. If there is no record of treatment for lumbar spine pain from your alleged onset date, they may determine that your testimony is inconsistent with the overall record. However, if you have MRIs showing severe narrowing at L4–L5 or L5–S1, the ALJ should agree that your testimony is reasonable and supported by your treatment records.
Common Mistakes: What NOT to Say During Testimony
Here are some common mistakes that many disability claimants make when testifying before an ALJ.
Avoid exaggerating your symptoms or limitations
No one, including ALJs, likes tall tales. If the ALJ believes you are exaggerating or embellishing your symptoms, they may be inclined to discount all of your testimony. For example, if you testify that you are completely bedridden and unable to move, but the record shows that you consistently show up on your own to in-person doctor appointments, the ALJ won’t trust your testimony. In order to qualify for Social Security disability, you only need to prove that you cannot perform a full-time, eight-hour-per-day, five-days-per-week job. You do not need to be bedridden in order to be approved by the ALJ, so if you are capable of doing certain things during a typical day, it’s important to tell the judge.
Don’t minimize or understate your medical condition
On the opposite end of the spectrum from embellishment is understatement. Either out of pride or selective memory, some disability claimants treat the hearing like a job interview, presenting themselves as the most capable and productive members of society, without any limitations due to their impairments. Every attorney has a story of the client with a broken back who brags to the ALJ about how much they can bench press, that they could go back to work tomorrow if given the opportunity. While the understater is preferable to someone who overstates their limitations, it still confuses the ALJ and may lead to a denial decision on the basis that you testified you can perform all manner of work-like activities despite your impairments.
Avoid being evasive or giving incomplete answers
Answers that waffle or equivocate can come across as evasive, and the ALJ may reasonably believe there is more information that you are withholding. As an example, if the ALJ asks whether you can drive, avoid saying “not really” or “not much.” These answers leave too much room for interpretation. Instead, give the judge a clear and honest answer that explains your actual limitations.
Answer the question that was asked — nothing more, nothing less
Concise answers are usually the most effective. Overexplaining can unintentionally create inconsistencies and confusion. For example, if you drive in a typical week, just say “yes” in response to the ALJ question, “Can you drive?” If the ALJ then wants to know more, they may ask, “Is there anything about your condition that limits your ability to drive?” This gives you the opportunity to provide more information.
You also shouldn’t volunteer information that wasn’t asked. If the ALJ asks, “Do you drive?”don’t respond, “My doctor never told me to stop driving.” This is not responsive to the call of the question, and the ALJ may wonder what else your doctor never told you, such as whether you should stop working or try to go back to work.
Avoid the “labor market” argument (why “I can’t find a job” doesn’t prove disability)
As strange as it seems, the administrative law judge is not considering real-world factors such as the overall economy, which employers are hiring or firing employees, whether the labor market is biased against older individuals, etc. The ALJ is only supposed to decide whether, in a vacuum with no other considerations, you could perform a full-time job if it was offered to you. Do not say, “Who would hire a person with a cane?”“Jobs in my area require experience with a computer,” or “No one will hire me due to my age.”These statements come across as conclusory and argumentative, and they are outside the scope of the ALJ’s determination.
Steer clear of vague superlatives like “always” and “never”
Overbroad terms like “always” or “never” confuse more than clarify. For example, if you are able to occasionally leave your home in a typical week, you should use qualifying terms such as “most of the time” or the “majority of the time,” rather than testifying that you “always” stay inside your home due to your disability.
Don’t hide past substance use, criminal history, or other relevant “bad facts”
In many cases, evidence of drug or alcohol abuse or criminal conviction has no relevance to the claim for disability. For example, evidence of drug or alcohol abuse does not necessarily impact a physical disability such as a lower back injury. However, lying to the ALJ or withholding a history of drug or alcohol addiction will negatively impact your credibility. If you are willing to lie to the ALJ about drugs or alcohol, they may believe you are being dishonest about the conditions that impact your ability to work and the limitations you experience on a day-to-day basis. This is why is it important to be honest about drug or alcohol abuse, since it goes to your credibility.
Avoid criticizing former employers, doctors, or the Social Security Administration
The only legal issue before the ALJ is whether or not your condition meets the rules for Social Security disability. The judge has no jurisdiction over any personal matters such as prior issues with employers, doctors, or the long wait times at the SSA. Since ALJs frequently rely on medical records from doctors to make disability determinations, criticizing those very sources is typically not a successful strategy.
Behavioral Mistakes That Can Hurt Your Credibility
The hearing is an opportunity to present your case, but it is also an assessment of your credibility. How you conduct yourself throughout the process can affect how the ALJ interprets your testimony and the evidence in your record. Avoid behaviors that could make you appear hostile, evasive, disrespectful, or inconsistent, even when the questions are difficult or the hearing becomes stressful.
Becoming defensive when the judge asks difficult questions
It’s a natural and reasonable reaction to feel like you are being interrogated or put on the spot during a disability hearing. Keep in mind that the ALJ is just doing their job, taking testimony from you about your work history and the reasons you stopped working. They’re trying to parse through thousands of pages of medical records while also providing an opportunity for you to fill in the gaps. If the ALJ receives unnecessarily curt or abrupt answers, it does not help your case.
So, keep in mind that the point of the hearing is to allow the judge to listen to your side of the story, and that the questions you are being asked are not meant to embarrass you or trick you. No matter how personal the ALJ’s questioning, it is important to refrain from becoming defensive.
Expressing frustration or arguing with the ALJ
It is generally never a good idea to argue with a person who has the power to make major decisions over your life. Similarly, with an ALJ, there is no benefit to getting angry with or arguing with them.
Interrupting the judge, vocational expert, or attorney
When testifying at the hearing, it’s important to wait for the ALJ, attorney, or vocational expert to completely finish asking the question before you begin your response. The hearing is being recorded, so interruptions can cause issues with a legible transcript. If the transcript is unusable, the judge may need to reschedule the hearing and hold it again. If the ALJ gets interrupted, this could lead to frustration, and the number one rule in disability hearings is to try to avoid upsetting or frustrating the judge.
Managing emotional reactions while remaining honest and respectful
Disability hearings are emotional. Becoming tearful during a hearing is a completely normal response to a stressful and upsetting situation. If you become overwhelmed, it is okay to take a moment to compose yourself before continuing. Most ALJs will go off the record and allow you to compose yourself if you become tearful or unable to proceed with testimony. At the same time, do your best to remain respectful and answer questions honestly, even when the subject matter is difficult or frustrating.
Appearing inconsistent with prior statements
When you apply for disability and for the duration of the appeal, you will be asked to submit statements about your past relevant work and your activities of daily living, and provide details about how your pain or impairment prevents you from working. These work history reports and function reports are in the electronic file, which the ALJ can review before, during, and after the hearing.
Navigating Questions About Your Daily Activities
At the hearing, you will be asked about how your condition impacts your ability to perform activities daily. As we have discussed, it’s important to be straightforward and honest during this part of the process.
Why saying “I do nothing all day” can hurt your case
As with the advice about avoiding overbroad statements such as “always” or “never,” you should make an effort to be precise with your responses. Even if you “do nothing” all day, “doing nothing” can mean lying in bed in your room watching TV, napping on a couch with your legs elevated, etc. If you do nothing all day, explain specifically what you do during that time and how your impairments affect your ability to do other activities.
Explaining household activities
Many people on disability are still capable of performing basic household activities such as cleaning, cooking, taking out the trash, or even taking care of disabled loved ones. If you are capable of doing some or all of these things, this does not mean you are capable of performing full-time work. In fact, when you are honest about the things you can do during the day around the house, this lends credibility to other parts of your testimony.
Explaining Your Symptoms in a Way the ALJ Understands
The administrative law judge needs more than a list of diagnoses or a description of how you feel. Your testimony should provide a clear picture of what you can and cannot do, how your symptoms affect you over time, and how those limitations relate to your ability to work.
As the founder of LaPorte Law Firm, Terry LaPorte explains in his article how to answer questions from the ALJ.
Focus on functional limitations, not just diagnoses
One of the biggest mistakes claimants make is responding by listing their medical conditions. The judge has already reviewed your medical records before the hearing. They already knows your diagnoses. What they need to understand is how those conditions affect your ability to work.
So, instead of listing your conditions, focus on how those conditions affect your ability to work. For example, rather than saying, “I have degenerative disc disease, arthritis, and neuropathy,” explain what those conditions prevent you from doing:
- “I can no longer sit at a desk for long periods of time.”
- “I cannot lift the weight my job required.”
- “I cannot climb ladders or perform the physical tasks my previous work required.”
Explaining good days and bad days without appearing inconsistent
ALJs are familiar with nuance, and they understand that some symptoms wax and wane from day to day. Be prepared to explain what you are able to do on a “good day” that you would struggle to perform on a “bad day,” and what a typical bad day looks like for you. If you experience fatigue after exertion, it’s useful for the ALJ to hear examples of the types of activities that cause post-exertion fatigue.
Explaining mental health symptoms, memory, and concentration problems
Medical records do not always clearly show how memory and concentration problems affect your ability to function. Describing your cognitive challenges through specific, everyday examples can help the ALJ understand what you go through.
For example, do you need reminders to take your medications? Do you forget to attend appointments? Did you use to enjoy reading or watching movies but are no longer able to sustain concentration in two-hour segments? These types of examples help the ALJ classify your cognitive abilities into functional workplace limitations.
Don’t guess if you don’t know an answer
If you do not know the answer to a question, do not try to guess. The hearing is not a test or a job interview. “I don’t know” is a perfectly valid answer, so long as it’s the honest one.
Answering questions about your work history and past jobs
As with describing your disability, it’s critical not to overstate or understate the role you performed in your past jobs. This can lead to improper classifications of your past work, which may result in a Step 4 denial, in which the ALJ decides that you can perform your past relevant work despite your impairments, or a Step 5 denial finding that you have transferable skills to perform other similar jobs in the national economy.
How to Prepare for a Successful ALJ Hearing
Preparing for an ALJ hearing is about more than reviewing your medical records. You should also be ready to discuss your work history, the circumstances surrounding your last job, and the practical ways your impairments affect your daily life. A little preparation can help you give clearer, more complete answers when the hearing begins.
Review your work history
Prior to the hearing, review your work history, which the SSA classifies as any job you performed in the five years prior to when you became unable to work. Be sure to understand your alleged onset date, which is the date you said you became unable to work on your disability application. You can amend this date at the hearing, but it’s important to understand what your alleged onset date is, because this is the date the ALJ will be focused on during the hearing. It typically coincides with both a work stoppage and a new or worsening impairment that would prevent you from working. If you worked after your alleged onset date, or you received income such as sick, disability, or vacation pay, be prepared to explain it.
Think about the circumstances that led you to stop working
The ALJ will likely ask you why you stopped working. You should think about the circumstances that led you to stop working, including whether you had workplace accommodations prior to the work stoppage, if you had to modify your work, or if your impairments were limiting your ability to work prior to stopping. The date you stopped working is often also the alleged onset date.
Consider your primary impairment(s)
Be prepared to state the main reason(s) you feel you are unable to work. Rather than listing every symptom or diagnosis, you should consider the main few conditions that, if every other symptom went away, would still impact your ability to work. Time at the hearing is limited, so its critical to focus on the main two to five conditions that would prevent you from working. This helps the ALJ focus on the most important conditions and ask follow-up questions about the most relevant issues.
Track how your impairments affect your daily life
In the weeks leading up to the hearing, note how your condition impacts your ability to perform basic activities of daily living, such as cooking, cleaning, laundry, or shopping. Be prepared to provide examples, such as “I need to use a chair in the kitchen while cooking” or “I installed a grab bar in the shower to prevent falls.” These types of daily-life examples help the judge understand the day-to-day minutiae that might not make it into your medical records.
Have a plan for the day of your hearing
Are you testifying by phone? Have a plan for which room you will testify in. Let your family members know you need privacy, and have your phone fully charged on the day of the hearing. If you are testifying by video, make sure you have access to a reliable Wi-Fi network and are familiar with Microsoft teams software. If you have an in-person hearing, make sure you have a plan for transportation on the day of the hearing and bring a valid ID.
For more information about preparing for your hearing, check out our article on the topic.
How a Disability Attorney Can Help Before and During the Hearing
An attorney can play an important role both before and during your disability hearing. From preparing you to testify to developing evidence and advocating on your behalf, your attorney can help ensure your case is presented as effectively as possible.
Preparing you for the judge’s questions
A disability lawyer will discuss the overall process, conduct a mock hearing, give feedback about your testimony, and give general advice for best practices when testifying.
Developing evidence that supports your testimony
Your attorney will request medical records, submit supporting forms and statements from your treating physician, and file any applicable third-party statements.
Presenting the strongest possible case to the ALJ
Your attorney will submit a pre-hearing brief summarizing the best evidence in your case and outlining the general legal theory for why the judge should approve your case. The attorney will also pose questions during your testimony to elicit facts most favorable to your case, and cross-examine any government experts who have been hired to testify, including a medical expert or a vocational expert.
What to Remember on Hearing Day
There is no right or wrong answer at your ALJ hearing. So long as you are testifying truthfully and only answering the call of the question without volunteering any additional information, you are setting yourself up for success. Prior to the hearing, review your work history, think about the reasons you feel you are unable to work, and how your medical condition limits your day-to-day activities. Remember, the ALJ is just a public servant performing a critical job, so treat them with respect by providing honest and straightforward testimony. You will be happy you spent time preparing for the hearing when you receive the fully favorable decision in the mail.