Hearings are conducted by federal Administrative Law Judges (ALJs). What do they look for in a hearing?
1. First, they look to see if you are working or if you have worked since the date you claimed disability. This is called a Step One investigation because working may stop the process and cause an automatic denial immediately (at step 1).
2. They determine your past relevant work, i.e. any full-time job(s) you have held within the past 15 years.
3. They explore your physical and/or mental impairments to see (a) Are they severe enough to meet a published Listing, (b) are they severe enough to prevent you from doing any past relevant work, or any other work that exists in the national economy?
The impairments and symptoms you allege will be compared to your medical records to see if your doctors support your testimony. The medical records are the heart of the hearing. Assuming you don't disqualify yourself by a technical matter (working at substantial gainful activity), the case rises or falls on what's in the medical records.
4. The judge will explore how active you are in terms of daily activities: What is your living arrangement? What do you do during the day? Do you shop? Drive? Do housework or yard work? Hobbies? Do you need help with any activities of daily living?
5. The judge will ask a vocational expert (present at the hearing) whether a certain set of restrictions will prevent you from working. If you are under age 50, you must be found unable to physically or mentally sustain full-time work of any kind. If you are 50 or over, the vocational question will focus more on whether you are able to perform any of your past relevant jobs.
Here is a typical hypothetical question that a judge might pose to the vocational expert:
Assume that we have a claimant who is the same age, has the same education, work experience and education as the claimant. Further assume that this individual can perform the full range of light work; except: she can only use the dominant right upper extremity for reaching overhead on an occasional basis. She can stoop, crouch, kneel and crawl on a frequent basis. She can frequently climb ramps and stars but never ropes, ladders or scaffolds. She can tolerate extreme hot/cold temperatures and areas of vibration frequently, but should never be exposed to unprotected heights or dangerous moving machinery. Because of pain, she would be expected to be off task about 10 percent of a work day. Given these limitations, would the claimant be able to perform any of her past relevant work? (VE will answer). Is there any other work that she would be able to perform? (VE will answer, listing examples of jobs that may be available and the number of those jobs which exist in the national economy).
Please note that Social Security takes no notice of whether a person can find a job, since it is a disability program, not an unemployment program. It does not matter if there are no jobs in the claimant's hometown, if nobody will hire her, or that she has looked for work for 10 years and couldn't find a job. The question is: Is she able to work?
Social Security's vocational expert will rely on an outdated publication titled Dictionary of Occupational Titles (DOT) which was published during the Great Depression (1930s) and was last updated around 1993. This puts Social Security largely out of touch with jobs that exist in the national economy today. For example, there are few if any jobs using computer technology in the DOT because when the DOT was last updated, computers were not yet being used for most work.
You begin to get the idea that this is a rather complicated business. Therefore, judges who hear these cases usually recommend that a claimant appoint an attorney or representative to assist him/her at the hearing. Not having a representative puts the claimant at a distinct disadvantage, not knowing how to use Social Security's rules and regulations or how to cross examine the vocational expert.
HOW DOES REPRESENTATION WORK?
You appoint a qualified representative to help you. You will not be charged a fee or asked to pay any money upfront. If your case is successful and you receive back pay, Social Security will withhold the agreed attorney's fee and pay your representative directly. If you do not receive back pay, the representation is free. Using a representative never reduces the amount of your monthly benefits.
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