What you can expect when appearing before a "judge in the box"
My client Joe* and I sat before a massive video monitor in Redding the other day, staring into the dour, brooding face of one of the most cankerous Administrative Law Judges (ALJ) the Social Security Administration has to dish up here in the North state. He was in Sacramento and was his normal surly self, trying to do his level-best to rip the liver out of poor Joe on direct examination. It was trial by fire, federal style. When he was finished, he patched in the disembodied voice of an orthopedic specialist on the Eastern Seaboard, three thousand miles away. This doctor’s voice came booming in from a loud speaker above and behind us; it was just plain creepy and not good news for Joe at all. The doctor decided to slam Joe based on his perceived light work restrictions.
By the time the judge turned questioning to me, I was very unhappy. A vigorous cross-examination of the doctor ensued. We demonstrated on the record that he had no real knowledge of Joe’s actual physical condition, current medical record or of the testimony from the hearing that took place earlier in his case. However, that did not stop the ALJ from turning next to a Vocational Expert (VE) that was actually present in the court room, ensconced imperiously above and to the left of us. The judge’s plan was to utilize the VE for further pummeling of Joe based on the doctor’s testimony. The VE testified that Joe could do a variety of less physical jobs readily available in the U.S. economy.
Yet another vigorous cross-examination ensued based on the actual evidence in the proceedings, indicating that that simply was not the case based on Joe’s current medical condition. The ALJ sided with his interpretation of the experts’ opinions in his subsequent opinion: “Not disabled.” It didn’t matter that Joe could barely use his arms due to a significant underlying industrial injury or that he had a spinal surgery, nor the fact that he had no transferable skills. Is this due process? As a humble Social Security representative, I live for moments like this. Welcome to the out-of-body experience of video conferenced Social Security hearings. I want my clients to really understand what it is going to be like in their hearings before the Social Security Administration. They can improve their chances of getting benefits by educating themselves on what to expect and how to keep their cool under pressure.
Video conferenced hearings on a federal level are now a fact of life here in the sticks. Fortunately, the majority of claimants do not get the treatment experienced by Joe. Most federal judges are trying to ask the right questions to see if someone fits under the Administration’s rules for determining disability. This article will address what you can expect if you are set to go to a hearing with me and how to react to the “judge in a box.”
When you walk into the hearing room, prepare to be wanded down by no-nonsense security personnel with utility belts bristling with pistols, tasers and lots of back up ammo--sorry, we are now living in post-9/11 America. Just pretend you are going on a plane trip for this hearing and you are thinking about all the crazy stuff TSA has in store for you before you board that plane to Fresno. Please do not have any sharp objects, mace, or pepper spray on your person, and for heaven’s sake, turn your cell phone off or leave it in your car.
Since we are in the legal outback here in Northern California, most hearings are now being conducted remotely by judges out of Sacramento. Once you have been cleared, we will be ushered into a small hearing room. I will be seated normally to your immediate left (being the only liberal guy in the room, this is a power seat for me). There is always a kindly Hearing Monitor to record the proceedings and provide comic relief (they are frequently the only friendly people in the proceeding and make a point of putting people at ease). Most times, a really somber and unhappy looking VE is present to be questioned by the judge regarding the ultimate question of your employability in the U.S. economy. The ALJ will ask us to announce our appearances and then we go
on the record. He or she will ask if I have reviewed the file and have any objections to it being taken into evidence. I rarely do. You and any other witnesses will then be sworn in and the show begins in earnest. Most of the talking will be done by the ALJ. The ALJ normally has reviewed the file closely and will focus in on the areas that he/she feels are at issue. Expect to be peppered with at least 30 minutes of pointed questions regarding: the work you have done in the last 15 years, where it hurts, your limitations, your daily activities, your skills, how you spend your day, the meds you take, the people in your family, your hobbies, and why you feel you can’t work. After this direct examination, the ALJ will ask me if I have any questions for you. I normally have a lot and they can make a big difference if the ALJ didn’t ask the right ones to start out with (I once had a client testify to the fact that she was hearing voices after her husband’s death; the judge would never have picked that one up. The VE’s mouth was actually hanging open by the time I was finished with my questioning. The crucial juncture of any SSD hearing is when the ALJ asks the hypothetical questions of the VE. A hypothetical is a combination of an assumed or proved set of facts stated to an expert for their opinion on disputed issues. If the ALJ thinks you might be employable under the Administration’s rules, they will formulate a hypothetical for the VE regarding what they think – based on your testimony, the medical record, your work restrictions, and your transferable skills. Transferable skills, by the way, are things you know that could allow you to do a different, less physical job.
Sometimes the VE’s participation in the hearing is not necessary, but the vast majority of hearings now involve one. Questions to the VE are focused on a similarly-situated person (fill in your job history in the last 15 years) and if this person can do the easiest job during this past relevant work period. If the answer is no, then you go on to the next step. Yea! The second question deals with whether this hypothetical person is able do any jobs significantly available in the U.S. economy. This is a big-time issue in a hearing, folks. I am always seriously puckering up in my seat, as this is a money moment for all. The judge reveals his or her stripes at this time – is he/she reasonable or just an iron-fisted conservative, bent on keeping yet another claimant off the rolls of early retirement. If the VE says that there are no jobs significantly available in the U.S. economy that would fit your condition/skillset you just won. Double Yea! If the VE starts chatting about how many thousands of jobs there out there for you in the local and national economy, then I have my job cut out for me in cross-examination to demonstrate to the contrary. If you win, some judges will issue bench decisions right then and there. In most instances, they will take the matter under submission and issue a decision in 90 to 120 days. The hearing is usually over in 45 minutes to an hour. I can usually tell how it is going to go down and will advise you when we are out of the court room. The first key really is to keep your dignity, whatever question comes down the pike. Joe demonstrated admirable grace under pressure and did a fine job enduring the abuse with style. You simply can’t take no for an answer in such proceedings, or take things too personally. In Joe’s case, we have asked the Appeals Counsel to review the ALJ’s decision. My plan is to win this one. As you can tell, it was fraught with error, as the orthopedist’s opinion the ALJ relied on was not substantial evidence and completely defective. That is the way it goes sometimes. The second key in these cases is to keep the faith baby and keep on appealing!