Preparing for Your Hearing
Many medications say on the bottle “do not drive, do not engage in activities that require alertness, or avoid hazards”. Make a list of your medicines and take it to the hearing. List any side effects you have such as drowsiness, dizziness, fatigue, nausea, or headaches. Ask your attorney what your “date-last-insured” is because you will need to prove you were disabled BEFORE this date, not after that date. If you do not have medical records before your date-last-insured, you will not be found disabled. Remember to testify about what your limitations were BEFORE your date-last-insured. Make sure you have a complete list of ALL doctors who treated you before the date-last-insured. Review your EXHIBIT LIST carefully and make sure your file contains all your medical records. You will be asked about your PAST WORK in the l5 years before the date you were disabled. You need to know your JOB TITLES and approximate dates when you did each job. Do not list jobs lasting less than three months. We must prove you cannot return to your past work and any other work. It is more difficult to prove this if your past work was highly skilled because you will be able to transfer skills to other work. It is also more difficult to prove you cannot go back to work if your past work was very “light” in terms of light lifting. Think about what parts of your past work involved heavy lifting. It is more difficult to prove you cannot go back to work if you did a lot of supervisory work, since you may be able to delegate some work to others. If supervision was performed only occasionally and not frequently, then it should not be considered or mentioned.
You will be asked about your education. If you did not complete a certain grade then you need to say that you did not complete that grade. For example: if you dropped out in the l0th grade, you need to testify you only completed the 9th grade. People who completed only lower educational grades have more difficulty performing many jobs. If you have been working during your period of disability, you must produce a document of your gross wages and the dates you worked. Sometimes it doesn’t affect your disability if you earned $1219 or less a month, or if you stopped work within 3 months due to disability, or you stopped work within 6 months because other workers had to assist you or share your job duties. If this is the case, ask your attorney for a form for your employer to fill out confirming these facts. Even if you worked longer than that, sometimes a TRIAL WORK period is allowed. Ask your attorney about this. If you cannot read OR write, that eliminates a large number of jobs you would otherwise be eligible for. Tell your attorney and judge if this is an issue. For example: are you unable to read street signs?
If you are not working, you may wonder how a judge determines you are disabled. The judge will ask you about your activities around the house and other daily activities because these activities may show that you can do other jobs. For example: if you can cook three meals a day, why can’t you work as a cook? Some people can cook with help from other family members, or they can cook for a few minutes using the microwave, or they can cook using the stove if they can take frequent breaks. If you can do large loads of laundry, why can’t you work washing clothes for other people? If you clean the house every day, why can’t you work as a house cleaner? If you drive many miles to the doctor’s office, why can’t you work as a taxi driver? Therefore, you must talk about your limitations doing any of these activities if you have such limitations. It is your limitations that are the primary concern of the judge. The judge wants you to give him/her your best estimate of how much you can lift and/or how long you can stand, sit, or walk.
Do you need to elevate your legs above chair level? For how long? Do you need to rest in the morning and also in the afternoon? For how long? Do you need to lie down in the morning and afternoon? For how long? Do you require a cane to walk on even surfaces? How long can you concentrate on TV or a newspaper or book when you are in pain? What memory problems do you have? For example: if you can lift l0 pounds, the law says you meet the lifting requirement of a sit-down job. If you cannot lift more than 8 pounds, you would not meet the requirements of such a job. Also, if you can sit a few hours, then alternate sitting and standing, you may be able to do some work. However, if you can only sit for 30 minutes to 1 hour and then must alternate with standing, you will not be able to do most jobs. If you need to rest in the morning and afternoon for MORE than the number of breaks most employees are given (i.e., for more than 15 minutes in the morning, 15 minutes in the afternoon, and 30 minutes to 60 minutes for lunch), you will not be able to do most jobs. If you are required to elevate your feet above chair level, many jobs will be eliminated. If you are taking naps that last longer than the typical three breaks most employees are given, most jobs will be eliminated. If your pain interferes with concentration so much that you cannot focus on a TV program, book, or newspaper, it is not likely that you would be able to work at any job. If your concentration difficulties also affect your memory, you need to talk about what happens. For example, if you cannot remember simple instructions, like twostep directions to an address or even a simple telephone number during the time it takes you to find a pen and write it down, this will be a significant problem. You must provide numbers to the judge. If you do not know exactly how long it takes before you need to take a rest from a sitting position or a break from a standing position, do not say you don’t know, but rather say what your best estimate is.
Numbers must be estimated for each functional limitation you have so that proper and complete hypothetical questions can be presented to the vocational expert who will attend your hearing. For example: the judge may say to the vocational expert, “If we have a person who must alternate sitting and standing every 30 minutes, elevate her legs for 40 minutes, or lift only 5 pounds, will there be any jobs available for such an individual?” If the judge does not have any numbers to put next to each one of your limitations, the vocational expert either will not know how to answer the question or will testify there are millions of jobs across the country for such an individual. Your attorney will give you a form that contains a range of limitations any person can have. You must complete the form, give it to your attorney, and take it with you to your hearing, so that it can be used when hypothetical questions are presented to the vocational expert at your hearing. Please do not lie or exaggerate about your limitations. Your judge will look at your testimony and compare it to what your doctors said in their medical records. If your limitations are not consistent with the medical records, you could be found not credible.
Ask your attorney for forms to take to your doctor that describe your limitations. If you have difficulty sitting for the length of time your hearing lasts, you need to show the judge this is a problem for you by either standing up or asking the judge if you can stand up. If you have problems using your hands or your fingers, this may prevent you from doing a variety of different types of jobs. If you have these problems, describe the difficulty you had completing many of the forms Social Security sent to you. How long did it take you to complete these forms? Did anyone help you do it? For example: you may have a neck condition with pain radiating into your arm and hand or you may have diabetes with neuropathy or numbness in the hand or fingers. If you have pain, you may be asked to rate your pain on a scale of 1-10 with 10 being the most severe. An “8” would be very severe and would be expected to interfere with most work. A “6” could also interfere with some work. You must be honest about your pain levels. You should also be aware of the fact that if your medication eliminates your pain, then clearly you are no longer disabled. If your medicine provides temporary relief, then it would depend on the length of time you receive relief. If the medication completely eliminates the pain but you have other side effects, the side effects alone may be disabling. For example: if you are so drowsy that you cannot concentrate or pay attention, that would interfere with most jobs. If you cannot walk for any appreciable length of time, that too may affect the ability to work. For example, if you cannot walk for up to one block, that may be a problem. If you can only walk about 50 feet and then you need to rest, that would present a problem for most jobs.
Some judges like to ask what you do from the time you get up in the morning until the time you go to bed. They also like to know about your social activities. For example, if you go out to dinner or socialize, some judges think that shows you are not in any pain or they may conclude that you certainly can sit, stand, and walk without any major difficulty. If you have mental limitations such as anxiety or depression, explain in detail how many (in terms of numbers) anxiety attacks you have during the day, each week, how many minutes or hours the attacks last and the symptoms (e.g., sweating, rapid heart rate, etc.). Talk about what you need to do to recover (e.g., do you go into a room and shut the door?). If you are depressed, explain what symptoms you have, how long they last, and what you do about the symptoms. For example, if your depression results in a loss of energy, how long in terms of hours are you sleeping during the morning and/or the afternoon? How does it affect concentration, attention, socializing, and getting along with people? Do you stay in the house? How long do you have periods of depression? Always try to put numbers on your limitations so proper hypothetical questions can be presented to the vocational expert by the judge and your attorney. If you have problems with alcohol and/or drugs and they affect your ability to work, you may not be found disabled. If your medical records mention that you have taken alcohol and/or drugs, your doctors will need to complete a drug and alcohol form saying whether it is material or not. Ask you attorney for the form. If you have not been in treatment for a long time (e.g., 6 months or more) you must be sent out by your attorney to see a doctor for a medical evaluation. Ask your attorney to do this.
All forms that you take to your doctor must be returned to your attorney immediately. The judges prefer to have all forms and medical records five days before the hearing. If you have been taking vacations or getting on a plane and traveling long distances, you will be asked how is it that you can sit on a plane for several hours. How is it that you can travel long distances? You will need to explain what difficulties you have doing this. After your hearing, it will take up to two months to get a decision, on average. Shortly thereafter, you will get a check sent to your bank account if your case was approved.
If you had a Workers’ Compensation case or other public benefits, it will be subject to an offset on your Social Security Disability. This may hold up a decision on your case unless you obtain a print out from the insurance company or agency showing how much money you receive from month to month or by settlement. Any Workers’ Compensation settlement will likely result in an offset on your Social Security if it is not “written off over your life time.” Make sure before you settle your Workers’ Compensation case that your WC attorney includes this paragraph in your settlement agreement. Never sign an agreement that does not include this paragraph.