Texas social security disability claimants are usually nervous at their administrative hearing. This is understandable. The disability hearing is your first opportunity to explain to an Administrative Law Judge (ALJ) why you deserve social security disability benefits. There is a lot at stake, and you are testifying under oath.
Answering questions posed by the ALJ is a vital part of the social security disability hearing. Your disability attorney can help prepare you for the hearing, and familiarize you with the questions typically asked. But your disability lawyer cannot answer the ALJ’s questions for you.
Many disability claimants 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. Visions of the judge “ripping you to shreds” or getting you so frazzled that you hurt your case.
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?”
But ALJ is much more likely to pose a more open ended question, like:
” Have you taken any vacations?”
There is nothing wrong with taking a vacation. You can still be found disabled. But don’t assume the ALJ does not know about any trips or vacations you have taken, because medical record will show activities of the patient typically. And typically, the ALJ has thoroughly reviewed the medical records before the hearing. The ALJ will have legimate questions about that vacation: did you drive, how long were you away, what did you do, and did you have trouble with anything during the vacation, etc.
But if she ask simply “have you taken any vacations?” you can be sure she is testing 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 your 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 about you will go beyond just the nature of the activity: she now is concerned you are not telling the truth about other things. Put simply: a less than truthful answer about anything will hurt your case. The “trick” the ALJ may employ is to pose the question that does not indicate he already knows the answer. So how do you avoid this “trick”: assume the ALJ already knows the answer, and don’t try to spine the truth.
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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