Over the past 25+ years I have represented hundreds of Atlanta area Social Security disability claimants at hearings and I want to offer you suggestions about what not to do when preparing for your hearing. Social Security judges are under a lot of pressure to only award benefits to deserving claimants and certain mistakes will flag you for quick denial.
Don’t Focus on Your Medical Diagnosis – Instead Emphasize Your Activity Limitations
Perhaps the biggest mistake I see happens when a disability claimant focuses on his/her diagnosis as opposed to the work limitations that result from the underlying medical condition. It does not matter to the judge that you have a herniated disc at L5/S1, or that you have congestive heat failure, or that you have a VA diagnosis of PTSD, or that you are HIV+.
Having a diagnosis of a severe medical problem is not enough.
Social Security defines disability in terms of how your medical issues impact your capacity for work. And not just any work – you have to prove that you cannot reliably perform even a simple, entry-level job. To do this, your medical record should reflect continuous and on-going treatment, statements from your doctors (ideally medical specialists) about limitations you would likely have at work, and an updated list of medications with side effects noted.
Under 2018 changes to Social Security procedure, your judge can ignore statements from even long time treating doctors if those statements about your functioning are not consistent with your on-going treatment record.
Therefore, you can avoid the mistake that dooms many cases if you focus on work activity limitations rather than your diagnosis alone.
Don’t Have an Attitude of Entitlement – Instead Show that You are a Fighter
A second mistake I see frequently involves what I call an “attitude of entitlement.” This happens when the disability judge senses that you have given up and that you have decided that you are disabled and cannot work.
SSD judges will give your testimony a lot more weight if they sense that you are fighting the idea of being disabled – that you hate the idea of coming before the judge to ask for disability and that you would much rather be working and supporting yourself and your family.
If you come to court thinking that SSA owes you or that “this is my money and I want it back,” your judge is more likely to conclude that you are trying to game the system. From Social Security’s perspective, the money you paid into the Social Security system is theirs and that you are not entitled to anything unless they decide to give it to you if and when they get around to doing so.
You may disagree with SSA’s attitude but this is how the Social Security disability system in the United States has evolved and I don’t see any changes coming anytime soon.
Don’t Describe Your Limitations with Generalities – Instead Speak in Specifics
A third major mistake I see happens when a disability claimant uses vague language to talk about his/her limitations. Statements like:
- I can’t walk very far.
- I can’t lift too much at all.
- I can’t sit too long.
- I don’t do much around the house.
- I have to urinate frequently.
- I don’t really know how to describe my pain.
- How much can I carry? I don’t know, I haven’t really thought about that.
are not going to help your case at your SSD hearing.
Instead, you and your lawyer need to practice how you will answer specifically to questions about your capabilities.
- For example, instead of saying “I can’t sit too long,” say, “I can sit for no more than 7 to 10 minutes then I have to stand up and walk around for no less than 10 minutes to get the feeling back in my lower back and legs. But after standing and walking for 10 minutes my lower back begins to ache and I have to sit down again. The total amount of sitting I can do in a day is about 2 hours. The total amount of standing I can do in typical day is about 90 minutes. When I am not sitting or standing, I am lying in my recliner with no pressure on my lower back. I often fall asleep in my recliner because of the pain medications I take every day.”
The reason why you want to testify using specifics is that the judge may very well plug these very specific limitations into a hypothetical question the judge will pose to the vocational expert at the end of your hearing. A vocational expert can testify about how a sitting limitations of 10 minutes might impact your job performance but ask a vocational expert what it means if you can’t “sit very long,” and the VE will say “that limitation doesn’t tell me anything.”
In my law practice, I always schedule a pre-hearing conference with my clients weeks or even months before their hearings. We use this pre-hearing conference to practice, practice and practice again. I use that pre-hearing conference to listen to how you answer my questions in a relaxed environment, then we go over the questions wer are likely to hear and make sure that you are prepared to testify convincingly and with confidence.
