Disability Hearing: Should I Worry About ALJ “Trick Questions”

Texas social security disability claimants are usually nervous at their administrative hearing.  This is understandable.  There is a lot at stake, and  you are testifying under oath before an Administrative Law Judge (ALJ).  Many worry that the ALJ is going to ask “trick questions”.

We all have seen courtroom dramas in which a cunning  and fast talking lawyer destroys the credibility of an honest witness by “twisting” their words and posing misleading questions.

Lets get this fear out of the way.  It is extremely unlikely that you will face an ALJ who seeks to destroy you and trick you into looking dishonest.  I have been handling only social security disability cases since 1991.  When I first started this practice, there was a very small minority of ALJs that bordered on being “tricky” and abusive.  Today, I encounter virtually no such ALJs.  Your best defense for handling such an ALJ is to hire an experienced local disability lawyer who will be able to advise you if you have been assigned to one of these very rare “bad apples”.

All ALJ hearings are recorded, and all ALJs are concerned about appearing harsh and abusive.  One surefire way to get an overly zealous ALJ to back off is to express your frustration, such as:

“Judge I am feeling like you are attacking me: did I say something to offend you?”

“Judge I am sorry but you are confusing me”

Most ALJs will become aware that the hearing recording reflects a uncomfortable claimant and will moderate their behavior.

The ALJ will however, probe your credibility

While the ALJ is unlikely to try and trick you, make no mistake: the ALJ will ask you questions to probe your credibility.  Her chief source of information before taking your testimony is going to be what is in the social security file.  That is, the medical records and the forms that you completed during the application process.

Most ALJ will have reviewed the file before the hearing, and will have made a note of any statements or observations that might be inconsistent with disability such as:

  • Non-compliance with medical treatment recommendations
  • Drug and alcohol abuse
  • Activities potentially inconsistent with inability to work such as work activity, vigorous exercise or hobbies, and vacations.

Its not necessarily the activity that hurts your disability case: its “lying” about it

When an ALJ sees reports of such activities either in the medical records or in the forms that you provided, she will ask you about them.  Lets look at an example that illustrates what might be the “trick” part often comes in this form:

The ALJ sees a notation in your back surgeons records that you took a vacation in Mexico and did some hang gliding.  She could ask the question in this form:

    • “I see in doctor X’s records that you went to Mexico and did some hang gliding.  Is that true?”

Most claimants are not going to denial, because they know the ALJ knows about it from medical records.

An ALJ is much more likely to simply ask:

” Have you taken any vacations?”

In this formulation of the question, the ALJ does not “let on” that she knows about the vacation.  She is seeking to find out whether you are going to lie to her.

The sad truth about falling into this trap is that the ALJ has not necessarily decided to deny you claim over the activity in question.  In fact, being truthful about that activity will bolster your case:  she now believes you are honest, and can more easily believe all the other symptoms you claim keep you from work.

And in contrast, if you “lie” to her, her concern goes beyond just the nature of the activity: she now is concerned you are not telling the truth about other things.

The other sad fact about failing to answer correctly with this “trick question” is that the denial may not based upon any desire to mislead on the claimant’s part.  Perhaps she forgot about the vacation.  Perhaps she interpreted the question as asking about regular vacations.  Or perhaps the claimant denied the vacation because she thought admitting it would cause the ALJ to deny her claim – a claim she truly believes has merit.

Don’t “Overthink” the ALJ’s disability hearing questions

The key to avoiding falling into a “trick question” trap with the administrative law judge is to avoid overthinking the question.  Simply tell the truth.  Don’t try to analyze what answer is going to help or hurt your case.  But in admitting any activities you do participate in, make sure you talk about the problems you have when you do those activities.

 

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