Who will be at my Social Security Disability Hearing?

The Judge

The most important person at the hearing (besides you, of course) is the Administrative Law Judge or ALJ.  After all, he or she will be the one deciding if you win your case at this stage, or if you have to move on to yet another appeal.  The ALJ therefore has a great deal of control over your case.

When most people think of a judge, they think of a powerful person in a black robe.  In some ways, the ALJ who will hear your case is no different. He or she will wear a robe and – at least for a few hours a day – the ALJ is pretty powerful.  But that’s no reason to be afraid of the judge.  They are actually just going to work on doing their job. 

The ALJs got their jobs for two reasons.  First, they have all worked as lawyers for at least 7 years.  This fact can work for you and against you. On the one hand, it is good because they usually understand the law very well, and they know that a case does not have to be perfect in order to win.  On the other hand, a lot of ALJs have not forgotten how to argue like lawyers.  As a result, the ALJs sometimes act less like judges and more like lawyers arguing against you.  This is why we feel that it is especially important to have someone representing you in the room at the same time.  The second way that the ALJs got their job was by passing a test.  They had to answer questions about different parts of the law, and they had to write “mock” decisions, as if they were deciding a real case. 

The ALJs probably like their jobs for many reasons, but one major one could be the paychecks.  They make anywhere from about $100,000 to $150,000 per year. Plus, they have the job for life, except if found guilty of some sort of bias against one side or the other.

Later we will give examples of some of the things the ALJs might ask in the hearing.  This may make clear to you that some ALJs are very tough, while others seem much more understanding.  The bottom line is that it is very easy and natural to feel intimidated by the ALJ , but you have to remember that they are just going to work and doing their job like the rest of us. 

The Medical Expert

Another person who might appear at the hearing is the Medical Expert or ME.  They used to be called Medical Advisors, which is their role, but SSA felt that changing their title might help make them seem more important.  The ME can be pretty hard to deal with, especially if you don’t know how to fight back.  Basically, Social Security pays these doctors to read your medical evidence, and then show up at the hearing and answer the ALJ’s questions about your condition.  The ME may try and ask you questions as well.  Many lawyers and advocates will allow this, but it depends on the ME.  They know the honest ones. If the Administrative Law Judge allows questioning, just relax and answer the questions completely.  Don’t leave anything out.

The ME will then generally give a short summary or speech about what his conclusion are. If you have an advocate, he or she could ask the ME questions in return.  This can help top weaken the ME’s opinion if it is not favorable to your case.

The ME is supposed to read over your file beforehand.  However, even when he does, he still does not examine you.  This means that his opinion is based on paper evidence only. So then the ME’s opinion would not matter as much as your doctor’s, right?  Wrong.  Often times, the ALJ will make the ME’s opinion the most important part of your case.  The ME can decide your case one way or the other, even though he or she has never examined you.

We think that most Medical Experts are giving truthful testimony. It is not that they are necessarily “out to get you.” We just don’t think they should be taken that seriously all of the time.  A good number of ME’s are retired doctors, and they haven’t kept up with the medical practices or literature.  Plus they have never actually examined you.  Moreover, some ALJs use MEs to come up with evidence against you.  Unfair ALJs know which “experts” to call as witnesses. 

Even with all of that in mind, don’t let the ME intimidate you.  He is not deciding your case. He may have an impact on it, but the ALJ makes the final decision.  Also, if you have strong medical evidence and someone on your side to back you up, that goes a long way. 

The Vocational Expert

Another person that Social Security may bring in sis called the Vocational Expert or VE.  (As you probably know, “vocation” is just another word for “work” or “job.”)  These folks are also paid by Social Security to provide testimony.  Their special area is jobs. They are trained to know everything there is to know about jobs in this country – how much physical strength it takes to do them, how long it takes to do them, what kind of skills you need and soon. 

The VE’s basic purpose is to tell the judge what kinds of jobs you could perform.  They first figure out if you could do your past job.  If you cannot, the VE next figures out what other work you could do. (These are steps 4 and 5 from the 5-step process discussed previously.)  Then they tell the ALJ how many of these jobs should be available in the “local economy” and the “national economy.”  If the VE feels that there enough jobs available to you, then he is basically saying that you are not disabled.  The ALJ can use this opinion to support his decision to deny you benefits, which makes the VE a very important person.

The way that the VE speaks to the ALH can be very confusing.  At times, it may not seem they are speaking bout you at all. We thought we should break it down for you so that you understand what is being said. 

First of all, you will hear the ALJ give the VE something called a “hypothetical.”  Hypotheticals are basically imaginary situations or people who look and act a lot like you do.  For example, let’s say that someone named Michelle Parker has a case and a hearing.  The ALJ would not ask the VE, “What jobs could Ms. Parker perform?”  Instead, he would ask the VE, “Please assume there was an individual who was 54 years old, had a 10^th grade education and a history of light work.  Also, assume that this individual could no longer stand for 6 hours during a day, could only loft 10 pounds, and was allergic to smoke.  What jobs would be available to this individual?”  This is a hypothetical.  Everybody in the room knows that the ALJ is asking about Ms. Parker. But he can’t use her name specifically because the VE is trained to answer about people in general, not a person in particular.  The law only backs up the VE if he answers as though the person’s actual identity doesn’t matter. It seems silly, but that’s kind of how the law is sometimes. 

The way that the VE responds to the ALJ cans be even more confusing.  You will probably see the VE refer to a big book several times during the hearing.   This is called the Dictionary of Occupational Titles.  It is the most important book in a VE’s life. It contains every single job you could ever imagine, and then tells you everything about it.   The VE knows his way around this book very well.  He can find out all of the information about a “Jewelry Fixture Polisher” faster than you can believe.  Unfortunately, the book is about 25 years out of date and there are no plans to update it.

When the VE is asked to list possible jobs for you, he will usually give 4 or 5 jobs that you have never heard of.  He will also give a code number with each job, such as 470.385-090.  (Don’t worry about the code number; that is for the ALJ and your advocate, if you have one.)  The VE will also rattle off some other numbers, such as how many of these jobs supposedly exist in your area and in the country. 

As for these great new jobs, don’t expect to find them in the local classified section of your newspaper.  Even though the VE says that several thousand of them are “available in the local economy,” there is no guarantee he is right.  Remember, he is just relying on an outdated book.  He doesn’t actually have to hit the pavement looking for work. This is one of the most frustrating things about the VE. They tell you that there are jobs out there for you to do, but they do nothing to help you find them.  We can think of a single client that went out and found a job that the VE recommended.

Fortunately the VE is no the judge.  He only passes along information. And, if you know how to poke holes in his theories, you can go a long way to helping your case. For example, one place where the VE is usually weak is in the area of mental limitations.  What this means is that the VE often responds to questions from the ALJ without considering whether or not the “hypothetical” person has trouble with things like stress or memory. Of course, the VE is not going to volunteer this information. You have to ask him to consider it.  But you – or better yet, your advocate – are allowed to give his or her own hypothetical to the VE. They can ask the VE to give possible jobs for a person who has all of you problems, not just the ones the ALJ pointed out.  We have seen many times where the VE changes his tune once we present a more complete hypothetical.  This is tricky stuff, but it can make the difference between winning and losing.