You may feel scared or intimidated as the date of your Social Security disability hearing approaches. Would it be ok if you brought a friend or relative into the hearing room to give you moral support. In this video I explain hearing office policy regarding witnesses and observers.
In this video, I talk about vocational witness testimony in a Social Security disability case. Vocational witnesses appear and testify at many Social Security disability hearings. At first, this may seem odd, as you have most likely never met this person and now he or she will be giving testimony about your hearing.
SSDI judges use vocational witnesses because the main issue they are deciding has to do with your capacity to work. Basically, during the hearing, the judge will be trying to identify specific limitations that arise from your medical or mental health condition. More specifically, the judge will be concerning himself with limitations that will impact your capacity to work.
For example, suppose that you hurt your back and you testify that you experience severe pain 3 to 4 hours per day and that the pain is so severe that you cannot sit or stand but have to lie down and take narcotic pain medication until you fall asleep. If the medical record supports your testimony and the judge finds you credible, he might ask the VE a question like this:
Oklahoma Senator Tom Coburn has released a comprehensive deficit reduction plan for the United States called Back in Black. Included in this almost 600 page plan is a subsection related to Social Security disability called Social Security Disability Programs: Improving the Quality of Benefit Award Decisions. Senator Coburn notes that if current financial trends continue, the SSDI and SSI programs will run out of money in 2015 or 2016. While no one expects Congress to let this happen, the immediacy of the SSDI program's default has caught the attention of lawmakers in the House and Senate.
Senator Coburn argues that "significant stress on the [Social Security disability] trust fund is due in part to the fact that the number of individuals receiving disability benefits continues to rise at an unprecedented rate. " He quotes a study from the Center for American Progress which reports that the disability program "provides strong incentives to applicants and beneficiaries to remain permanently out of the labor force, and it provides no incentives to employers to implement cost-effective accommodations that enale employees with work limitations to remain on the job.” Further “too many work-capable individuals involuntarily exit the labor force and apply for and often receive” Social Security disability.
Over a two year period, Senator Coburn and his staff reviewed SSDI hearing decisions from Virginia, Alabama and Oklahoma. His report concludes that a significant number of the hearing decisions were flawed because of poor hearing practices, improper evaluation of evidence by hearing judges, outdated job lists (referring to the Dictionary of Occupational Titles), and inconsistent use of consultative examinations.
The Coburn Committee’s recommendations include:
- presence of government representatives at hearing to oppose claims
- increasing hearing decision reviews
- enhanced ALJ training
- “reform” of the grid rules
- revision of consultative evaluation processes
While Senator Coburn’s recommendations have not yet been formally adopted by the Social Security Administration, it seems likely that Congress and SSA officials will implement some of these changes to reduce the drain on the disability trust fund.
Over the past few months, lawyers in the Social Security disability legal community have been talking about a rumor that Social Security administrators in Washington have sent out a memo to judges working in hearing offices throughout the country instructing them to cut back on the number of approvals being issued in disability cases. Historically, about 60% of cases taken to hearing have been approved – but according to this rumor, Social Security wants the approval rate to be around 30%.
There is no question that the Social Security disability trust fund is running out of money and judges in the local hearing offices are aware of this issue.
I have found no evidence that a memo has been sent, but I do note that all of the judges before whom I appear are requiring more and better evidence. Specifically, I am looking for the following when I accept a case and from my discussions with colleagues throughout the country, they are doing likewise:
- on-going treatment records – ideally records documenting several years’ worth of treatment
- a definitive diagnosis – your doctor needs to be able to identify specifically the medical condition or conditions that impact your work capacity
- support from your treating doctor in the form of a functional capacity form or narrative report – if your doctor does not want to get involved, or otherwise won’t cooperate, your case will be more difficult to win
- efforts by my client to try to work – under Social Security’s definitions, an unsuccessful work attempt is one that lasts less than 3 months. If you try to work but cannot, I think you enhance your credibility by showing that you are fighting against the idea of being disabled, not embracing it
- older claimants – 45 or older
Social Security has a stated goal of encouraging disabled claimants to return to work. However, as a practical matter, work attempts are treated very differently depending on where you are in the process. While you are waiting for your decision, work attempts can help your case (if these attempts are short and unsuccessful) or they can cause a judge to conclude that you are not disabled and do have the capacity for work.
After you are found disabled, my experience has been that Social Security is much more forgiving in terms of both the length of your work attempts and the type of work you may try.