WHAT A JUDGE LOOKS FOR AT HEARINGS

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So, you have a disability hearing coming up with an Administrative Law Judge (ALJ).

Many people don't realize what the judge will be looking for. Actually, the law specifies 5 things that the judge must determine at the hearing. These 5 things will determine whether the claimant can get a Social Security disability (SSDI) benefit.

These 5 questions must be taken in order, starting with number 1 and ending with number 5. Here they are:

1. Is the claimant now working?

• Working means engaging in “substantial gainful activity.” This means that if the person is working and has gross wages above a certain amount ($1,470 per month in 2023), they cannot be found disabled, and will be denied disability without any consideration of medical conditions

2. Does the person have a severe impairment?

• If a person’s medical condition does not cause at least some work related restrictions, the judge will deny the claim at this step. However, few people are denied at this level, and the judge moves on to the next step

3. Does the person have a medical condition that meets or equals a listed impairment?

• There is a long list of impairments so severe that they are presumed to be disabling. If a person has one of those diseases or medical problems described in the listings, the judge will award disability without the need to consider any other factors such as work history, age or exertion level. Most claimants will NOT meet or equal a Listing and very few decisions are made at this third step. Most hearings will go on to the 4th step.

4. Can the person return to his or her past relevant work?

• “Past relevant work” is defined in the disability rules. It means any significant work performed within the past 15 years. If a person is capable of performing any past relevant work, they will be denied disability at this step. The judge can deny the case at this level without any consideration of practical “real world” considerations such as whether the past relevant job is available or whether the person would be hired if they applied, or whether the work even exists in the area in which they live. If the judge believes that the claimant cannot return to any past relevant work, the judge moves on to the final step.

5. Is the person capable of performing any other work?

• “Any other work” means jobs that exist in significant numbers in the national economy. It usually refers to work that is easier than the claimant;s past relevant work. By far, this is the most complicated step in the disability evaluation process. Age, education, work experience, skill level, and transferability of skills are all combined with the classification of the persons physical and mental work restrictions (Residual Functional Capacity) to create a vocational profile. The judge will rely on the testimony of a qualified vocational expert at this step to determine which jobs exist in the national economy and the requirements of each job. The expert will use data from the US Department of Labor, the Dictionary of Occupational Titles and other sources to determine the estimated number of these jobs in the national economy. If the claimant's profile matches one of the jobs identified by the vocational expert, the case is denied. If the expert can find no jobs in the national economy that the claimant could perform, the case will be approved.

Most cases will be decided at Step 5. And most claimants will face testimony from a vocational expert who has been called by Social Security and paid by Social Security. As you can see, Step 5 gets complicated very quickly. Frankly, the claimant is now in over his or her head and does not understand most of what is happening here. There are a lot of unfamiliar terms and concepts being tossed around. It is nearly always necessary to challenge the vocational expert's opinion in order to win. That's the job of a qualified disability advocate or lawyer. Only a professional advocate with experience in hundreds of hearings will know how to guide Step 5 into a discussion that may win the case for the claimant. It almost never just accidentally happens.

Your advocate actually begins shaping the hearing many months before it begins. He/she will find medical evidence that supports Social Security's definition of "disability." Your lawyer/advocate will research the job market and prepare to make a reasonable and credible argument that the claimant cannot perform ANY full-time job, using the medical evidence as proof. This goes way beyond what the claimant is able to do for himself or herself.

A lawyer or professional advocate will earn his or her fee at Step 5 of your hearing. Having representation will be one of your greatest advantages during the hearing and in preparing for the hearing. In fact, a US Government study finds that claimants using professional representation are twice as likely to be awarded benefits compared to unrepresented claimants. (Source: Government Accountability Office, 2017).

A Social Security disability hearing is unlike anything you have ever seen before, and it's nothing like you think it will be. Unless you have attended hundreds of these hearings in which you have represented claimants' rights, you are totally unprepared and unqualified to represent yourself in what is perhaps the most important event since you became disabled. If the hearing goes poorly, you probably will never get another hearing in your lifetime. Plan for it and prepare for it by getting good representation. This is your financial future at stake!

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Charles W. Forsythe is a senior at The Forsythe Firm in Huntsville, Alabama. He has represented more than 1,000 persons in Social Security disability hearings over the past 20+ years. He is able to take a few new cases each year and is always available for free discussions about your Social Security claim, appeal or hearing. (256) 799-0297