WHAT YOU DON'T SAY AT A DISABILITY HEARING

Most claims for Social Security disability will wind up before an Administrative Law Judge (ALJ) for a hearing. The judge will ask questions involving the following broad areas:

• Why you believe you are not able to work.

• Your past work history (in some detail).

• Your current living and family situation.

• Your activities of daily living, including restrictions

Here are a few general rules I ask my clients to follow during questioning:

1. Tell the truth. Nothing causes more problems than lying.

2. Don't exaggerate, and don't minimize.

3. Don't volunteer information you are aren't asked about. Just answer the question, and STOP.

4. Never answer a question you don't understand. Ask for clarification.

5. Use terms that are well defined or mean the same thing to everyone. Avoid vague terms like: sometimes, now and then, not much, a whole lot, not very often, etc. Better to use terms such as: about twice a week, about 30 to 40 feet, less than 10 pounds, or 2 or 3 times per day.

Here are some statements you try NEVER to make at a hearing:

• My pain on a scale of 1 to 10 is always a 10. It never gets better.

• You have family members receiving disability or unemployment benefits (unless you are asked).

• You have a bad alcohol or drug problem. You "self-medicate." No, no, no!

• You haven't followed your doctor's advice or you don't take the medications your doctor has prescribed.

• Nobody will hire you; there are no jobs in your town.

• You can't work because you take care of a sick family member.

• You can't work because you don't have transportation.

• You don't have the skills or experience needed for a good job.

A judge simply will not believe that your pain is always a 10 and nothing ever makes it better. Constant pain on a 10 out of 10 scale would require hospitalization and the judge won't find the claim credible. Once you are found to be incredible the judge won't believe anything else you say.

Having family members on disability or unemployment benefits may indicate a family that relies on government benefits and doesn't have much incentive to work. This may not be true, but it is often taken that way.

Failure to follow a doctor's advice or take your medications is, in itself, a reason to deny a claim. Perhaps if you followed your treatment plan you would be better and wouldn't be disabled.

Nobody will hire you, or there are no jobs in your hometown are NOT disability problems. They are employment problems and Social Security doesn't pay for employment problems. Also, the judge may assume that if there were jobs available, you would go to work, thus you are not disabled. Remember, you are asking for benefits because you are physically and/or mentally unable to work, not because you can "find work."

If you are able to care for a sick family member, you may also be able to hold a job. Also, this implies that you could work but have a reason other than disability that prevents working. Always a bad argument. Don't say this.

Transportation, or lack of it, is never a disability or reason to award a disability benefit. The assumption is that if you had transportation you could and would be working. Thus, you are not disabled and Social Security does not pay for any other issue--just disability--due to a severe physical or mental impairment: Nothing Else! Transportation doesn't matter.

Not having good job skills, past experience or job training is not a disability. It may be an employment problem but the solution to it is vocational training or going to school to learn new skills. The solution is not disability payments and there is no disability benefit for lack of skills, or lack of training. This will kill your case right off the bat. It basically says, "I am physically and mentally able to work but I'm not working due to a lack of job training or experience." This is NOT a disability and it is not covered by the Social Security Act.

The judge wants to see a claimant who has a long, steady work history. He/she wants to work, is willing to work, but has a severe physical and/or mental impairment that makes work impossible. The judge also will want to see objective medical evidence (doctor's records) that proves the nature, severity and duration of the impairment(s). When did the impairment begin? What body parts are affected? How severe is it? What restrictions does the impairment cause in your ability to perform work-like activities, such as sitting, standing, walking, lifting, reaching, kneeling, crouching, crawling, grasping, handling, balancing, etc.?

You must be truthful at your hearing. If a judge asks you about any topic, you must answer truthfully. However, you are not required to volunteer information just to hurt your case.

For example, the judge asks you if you have a drinking problem. If you don't, simply say, "No, Your Honor." Do not volunteer, "I had a very severe drinking problem up until six months ago. I used to drink like a fish but I stopped drinking six months ago and I'm sober now." Too much information that you weren't asked about.

Or, if the judge asks: "Why do you think you are not able to work?" You reply: "Well, my back hurts, I have poor balance, my hands are swollen from arthritis and I suffer from regular chest pain and shortness of breath. Fine if you stopped there. But you continue to say: "Your Honor, my wife has cancer and I'm the only one who can stay home and care for her. She depends on me for everything." You have stated that you have more than one reason for not working and one of them has nothing to do with your own personal disability. This case will likely end in a denial by the judge. You imply that if your wife did not have cancer you would indeed be working.

If you are represented by an advocate or attorney, he or she will instruct you on how to testify at your hearing. You will go over things to say and things not to say--while being completely honest. Your attorney/advocate will also help you frame your testimony so that it demonstrates eligibility under the rules and regulations of the Social Security Administration. Remember, you may indeed be disabled, but you will only get a check if you are disabled "under the rules and regulations of the Social Security Administration. And they have the strictest rules in the world about what qualifies as a disability under their rules. There are many ways to torpedo your hearing. Prepare not to do so before you walk into the hearing room.

Not only must you be disabled. You must be disabled under the Rules and Regulations of the Social Security Administration.

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The Forsythe Firm, Social Security advocates and attorneys, 7027 Old Madison Pike NW, Huntsville, AL. Phone (256) 799-0297 or (256) 503-8151. Free consultations.