SOCIAL SECURITY HEARINGS: CRITICAL THINGS YOU MUST KNOW

When Social Security denies a disability claim you must request a hearing before a US administrative law judge (ALJ).  Here are a few critical things you must know about the hearing process if you are to win your disability benefits.

The ALJ will deal only in facts.  If it is not in your medical record, it did not happen.

The ALJ will need specifics.  Generalities will not suffice.  Avoid terms like "not very often, not very much, every now and then, or a whole lot.  You will need to provide answers in terms of minutes, hours, yards, feet, pounds, etc.

Winning requires a limited residual functional capacity.  A residual functional capacity (RFC) is the most you are able to do in terms of work-like activities, such as sitting, standing, walking, lifting, bending, concentrating, staying on task, etc.  The RFC must come from the medical records.  You need to provide evidence that will help the judge develop a properly limited RFC, else you may lose your case.  (This is so important that I plan to write a separate post just on the RFC itself).

The burden of proof is on you until you reach Step 5.  In parts 1-4 of the sequential evaluation process, Social Security does not have to prove anything.  They assume you are NOT disabled unless you can prove otherwise. They do not have to prove that you are not working now.  They do not have to prove that you do not have a severe impairment.  They do not have to prove that you don't meet a Listing.  They don't have to prove that you can perform some of your past relevant work.  The burden of proof with all these facts rests with you, the claimant.

The Burden of proof shifts at Step 5.  At the last part of the hearing, "Step 5," the burden of proof shifts, at least partially, from the claimant to Social Security.  In this final consideration, Social Security must prove that there exist a significant number of jobs in the US economy that you could perform, considering your age, education, residual functional capacity and previous relevant work experience.  They will attempt to prove this using testimony from a vocational expert.  Unless you can challenge the vocational expert there is a high probability that you will lose your hearing and your benefits.

For free information and consultation about an upcoming Social Security disability hearing, please contact the Forsythe Firm at (256) 799-0297.  www.Get-SS.com

FOCUS ON FUNCTION

I was recently asked this question.  "If you could give just one piece of advice to somebody who is about to apply for Social Security disability, what would it be?"

My answer was worded in two ways but they both really mean the same thing.  Here they are.

Focus on why you can't work, not why you can't get a job.

OR

Focus on functional limitations

The Social Security Act does not cover employment problems.  Social Security will not pay a benefit because you can't find work or because no one will hire you.  That is an employment problem, not a disability problem.

Instead, focus on particular functional limitations that make you unable to work--even if you could find a job.  Functional limitations can be divided into two very general categories.  I will state the two categories here and give a few illustrations of what I mean:

Exertional Limitations

• Due to back pain, I cannot lift and carry up to 10 pounds occasionally.
• I am unable to walk more than 25 yards without stopping to rest.
• I am not able to push and pull with my upper extremities.

Non-Exertional Limitations

• I have a severe vision impairment.
• I can't concentrate or pay attention for longer than 30 minutes at a time.
• I can't sit in one position for more than 30 minutes due to hip pain.

It's easy to get sidetracked into a discusson of "Why I can't get a job..." or "Nobody will hire me because..." 

Instead, focus on "Why I am unable to work."  The more specific you are concerning your functional limitations, the better.  Define your limits in terms of minutes, hours, pounds, feet or yards, when possible. "I can only sit for about 30 minutes at a time."

In summary, functional abilities include such abilities as:  sitting, standing, walking, pushing or pulling, concentrating, remembering, following instructions, getting along with supervisors or co-workers; bending, stooping, crawling, lifting, etc.  Note that functional abilities or limitations may involve both physical or mental activities.