1. Don’t Have a Clear and Concise Explanation of Why You Cannot Do Any Work
Health issues are complicated. Legal matters are complicated too. So I can understand that you might think proving your medical condition prevents you from working at a hearing before an administrative law judge is complicated. But it is not true.
In fact, your inability to work can and should boil down to a few simple facts.
An “elevator speech“, a concept from the world of business, is a brief description of an idea, product or company that explains the concept in such a way that anyone can understand it in a short period of time. You need an elevator speech for your disability case: a brief, concise and convincing explanation of why you can’t work. I’d like to claim credit for this great metaphor, but it belongs to my colleague and fellow disability attorney Jonathan Ginsberg.
When I meet with potential clients I look for a clear and direct “elevator speech” description of why they cannot work. Many answers to the “why-can’t-you-work” question are not precise, unclear, and are difficult to follow. (Take a look at my blog post on some common but “bad” answers to this question). Many people respond in a way that seems like they have never considered this question before. In my law practice, however, I certainly do not reject claimants just because they have a poor “elevator speech”: many well qualified disability applicants just need some help in articulating why they deserve disability benefits. But it is often a sign that the person does not in fact have a good basis for disability and is probably not entitled to benefits.
If you present a rambling, vague basis for disability to your ALJ she will suspect you may not be disabled. Don’t let a bad elevator speech start your hearing off on the wrong foot.
2. Emphasize the names of your illnesses without considering the impact of these illnesses on your ability to perform work activities
I often advice my clients in the following way:
“You are not disabled because you have a particular disease or condition; you are disabled due to the limitations in your ability to perform work activities that result from your medical condition ”
Yet many potential disability claimants answer the “why-can’t-you-work?” question with the disease or condition they have been diagnosed with. Again, credit to disability attorney Jonathan Ginsberg who has a nice video on avoiding “labels” in the mental health context. (Trust me, I did not steal all the ideas in this blog from Jonathan!).
When I ask potential Dallas area disability clients why they cannot work, I often hear the following:
“Because I have fibromyalgia”
“Because I have diabetes”
“Because I have depression”
“I have post traumatic stress disorder”
The mere fact that you have been diagnosed with specific diseases and conditions is not enough to win disability benefits. There are many people who can work despite the fact that they have been diagnosed with specific conditions – even if those conditions have horrible sounding names. Answering the all important “why-can’t-you-work” question with the “label” of your diagnosed conditions does not give the judge the information she needs to approve your case.
All administrative law judges are accustomed to this insufficient answer, and quickly follow up with more probing questions about the true basis for your disability. While this error is not fatal to your case, I include it in this list of hearing mistakes because it is more harmful to your case than you might think.
Disability claimants who are in fact still able to work typically over emphasize their diagnosed condition “labels” to justify their claim. When faced with a serious medical diagnosis, many people who don’t like their work anyway choose disability benefits over a return to work they hate. Other people seeking disability benefits are emotionally overwhelmed by their diagnosis and assume disability benefits are the answer.
I recently interviewed a potential client who told me he was disabled because he has “X Disease”. I probed further, asks about his symptoms, his limitations, and how “X Disease” limited his functioning. He continued to return to his “X Disease” label with statements like, “well X Disease causes you to…” or “when you have X Disease you…”. It almost felt like he had looked “X Disease” up on the internet and memorized the possible symptoms he found listed for X Disease – without regard to whether he in fact had those symptoms.
This kind of continual emphasis on the diagnosed condition’s name will cause your Judge to suspect that you are “hiding behind” your illness label, and are in fact not deserving of disability benefits. Not the place you want to be.
3. Lie and Exaggerate.
The evaluation of your credibility is an important responsibility for the Administrative Law Judge. Be assured in your hearing, like all of her hearings, she will be thinking:
“Can I believe this person’s statement that she can no longer work?”
“Is what he says about his ability to perform work-related activities credible?”
The judge will have made a complete review of your social security file before your hearing, and will have read what you have told your doctors and medical staff about your medical condition. In addition to your medical records, the social security disability file includes the forms you have completed. The judge will compare your statements with all your these records. She will read your medical history to determine if your doctors think your symptoms are credible, and if you honest and compliant with medical treatment. The judge will compare what you say in your hearing with these others sources of information.
Most judges will ask you about any discrepancies they see in what you say in your hearing versus what is in the medical record. The goal of the judge is not to try to trip you up or amplify every little discrepancy. Rather, the heart of the judge’s examination in your case is to simply determine what in fact you can and cannot do.
So how would any lie or discrepancy on your part affect how the judge answers this important question?
Our common sense tells us that it depends on what the lie is really about. Lies about your health and your ability to perform work-related activities are clearly the most damaging to your disability. Lies about extraneous or matters unrelated to your disability, less so.
Consider a disability case with the following facts:
The medical background indicates that a plaintiff has had a problem with alcohol in his life, including a conviction driving under the influence many years ago. The medical history indicates that the plaintiff no longer has a problem with alcohol, and never abused alcohol in the period of time that he has applied for disability benefits. In his trial, the plaintiff denied that he had received a “DUI” – unfortunately a clear lie.
Clearly, in determining if this person is or is not disabled, it does not matter whether they received a DUI many years ago because it is simply not evidence on the ability to perform work-related activity. What matters to the judge is whether this lie indicates that the disability claimant is dishonest and, therefore, may be lying about the things that do matter: his abilities to perform work-related activities.
The problem is that lies of any kind have a corrosive effect on a person’s credibility. This is because of what psychologists call “negativity bias”. Things of a more negative nature (e.g. unpleasant thoughts, emotions, or social interactions; harmful/traumatic events) have a greater effect on one’s psychological state and processes than neutral or positive things. In other words, something very positive will generally have less of an impact on a person’s behavior and cognition than something equally emotional but negative. Here’s how this negativity bias plays out with regard to credibility:
“A dishonest person can sometimes act honestly while still being considered to be predominantly dishonest; on the other hand, an honest person who sometimes does dishonest things will likely be reclassified as a dishonest person. It is expected that a dishonest person will occasionally be honest, but this honesty will not counteract the prior demonstrations of dishonesty. Honesty is considered more easily tarnished by acts of dishonesty. Honesty itself would then be not diagnostic of an honest nature, only the absence of dishonesty.” https://en.wikipedia.org/wiki/Negativity_bias.
Maybe a better way to describe it is the simple observation by German philosopher Freidrich Nietzsche:
“I’m not upset that you lied to me, I’m upset that from now on I can’t believe you.”
even “little white lies” in your disability hearing can hurt you. But this advice is not intended to frighten you into obsessing over everything you say in the ALJ hearing. For example, if the medical record says you left the hospital on Tuesday and you testify that you left the hospital on Thursday, don’t worry the ALJ is beginning to think that you are a dishonest person. Use your common sense. And if you tell one or two little untruths or “misstatements” I doubt you are ruining your hearing.
But if the ALJ is beginning to notice a pattern of untruths – even if those untruths don’t specifically address your abilities to perform work-related activities – your disability claim is in danger.
4. Bring Your Wrong Assumptions to the Hearing and Act Upon Them
Your administrative law judge hearing is the most important event in your disability case. This is the first time, and perhaps the only time, that you can talk face to face with the person who can approve your case. There are things that you want the judge to know. There are things that your family and friends want you to tell the judge. But trust me when I tell you this. Based on my 25 plus years of social security disability experience, many of the things you and your family think are critically important to tell the judge are, in fact, not only unimportant: they may be detrimental to your case.
5. Try to convince the judge that you are a good person
Many people are ashamed to seek to file for disability, even though they are truly deserving of disability benefits. Your unmerited shame may compels you to try to convince the judge of your virtue: that you work hard and that you are not lazy. These are common statements by disability claimants:
“My neighbor is receiving disability benefits and I am much worse than him”
“I’ve worked all my life and I’ve never taken government brochures.”
“If I could work I would do it”
However the judge will not award you disability benefits because you are a good person. Your administrative hearing is not about whether you are a virtuous, hard worker. Rather, you have a simple goal at your disability hearing: answer the questions and tell the judge about your work-related limitations.
Do not misunderstand. It is certainly better for the judge to think well of you. But she probably already knows it as a result of reviewing the facts of your case and what she sees in the evidence file.
The problem arises when you try to convince the judge of your virtue.
Like the justifications for disability emphasizing “labels” we just discussed, statements designed to impress the judge as to character and rectitude are more common with those who in fact do not deserve disability benefits.
The judge is used to claimants who seem to think they are entitled to disability benefits because they have worked a long time, or are good people. Your telling the judge that you have worked since you were 17 years old, for example, only makes her suspect that you feel entitled to disability benefits.
6. Be Negative About Everything: Have No Hope of Working Again, Deny the Ability to Do Anything and Never Admit Any Medication or Medical Procedure Did You Any Good.
A medical or physical disability that keeps you from working is, to put it mildly, a catastrophe. Disability applicants are demoralized, depressed, anxious and often in pain – but seldom optimistic or positive about life. The understandable negativity of disability applicants is often exacerbated by a widely held but incorrect belief that disability benefits are reserved for invalids. How can one hold an optimistic view of the future? Won’t that hurt the disability case? Won’t acknowledging that past or current medical treatment hurt the chances of being approved for disability?
In fact, just the opposite is true. ALJs usually view disability applicants who are sure they will never get better or return to work with some suspicion. Claims that medical procedures or medications have been no help at all are hard to believe, because most medical treatment helps at least some. ALJs can easily suspect that such uniformly negative claimants are exaggerating or so closely identify with their illness that they have gone from being a person with a disability to a ‘disabled person’.
7. Allow Your Anxiety to Control How You React and What You Say in Your Hearing
You will be anxiety in your audience. But being anxious will NOT ruin your hearing. If you are prepared, if you anticipate the direction in which your anxiety might be pushing you, you will avoid damaging errors. Even if you are trembling like a leaf, you can have a good outcome in your disability hearing.
Here are some critical errors that disability claimants often make due to anxiety:
8. Interrupt Others when they are Speaking in the Hearing – Especially the Judge
What kind of person would interrupt a judge – the person who will decide your case? One thinks, perhaps: “I would never make this mistake.”
Don’t be so sure. I have seen it.
I’ve seen kind people – not rude people – interrupts the judge. So why is this happening?
To start, interrupting is normal. Observe your interactions and conversations on a typical day. We interrupt other people continuously: it is not a disrespectful act. In fact, in our normal conversations there are often many interruptions. But, your hearing with the judge on disability social security is not a typical conversation. You will testify under oath. The judge’s office will make a recording of your trial. If many people are speaking at the same time, the testimony would be difficult to understand and your testimony in the record of legal proceedings will not be clear.
I think something else explains why respectful and polite claimants end up interrupting in their disability hearings: anxiety. Sometimes I imagine what else is going through the minds of customers who interrupt their judgment:
“This is my only opportunity to explain my problems and my situation! I must make it clear now ”
“What if the judge doesn’t understand my illnesses, my case, or the reasons I need benefits? I must make it clear now ”
“The Judge does not have a friendly expression on my face – I must help the judge understand that I am right. I must explain immediately! ”
“Oh, yes, we know the answer what the judge wants. Why don’t we answer even before she completes her question? She will appreciate how helpful I am. ”
The judge will probably take your interruptions as a sign of disrespect, though this clearly not if this is not your intention. But don’t worry – it’s easy to avoid this error:
Never, never, never, open your mouth before the judge has finished speaking.
9. Over-analyze everything in your ALJ hearing. Be ‘Results-Oriented’ in All Your Answers.
As I said, your anxiety is not the problem. The problem arises when you let your anxiety have free reign in your head. When you testify at your disability hearing, you know there is a lot at stake. It is very similar to giving a speech or giving a musical performance. A major problem for athletes and musicians is “staying in the moment” to avoid negative or distracting thoughts. For a beginning violinist, for example, a major problem may be to avoid continuously monitoring ones performance during the actual performance. The anxious violinist could easily be overwhelmed:
“Oh no, did I forget a passage?”
“Oh, I played that passage too fast. ”
“Damn, I still didn’t play that glissando evenly.”
This thought process is likely to have a negative impact on the violinist’s performance: he is no longer “in the moment” because he is too busy critiquing his performance.
Similarly, many disability applicants worry and obsess over the impact of their testimony and if the hearing is “going well.” Those claimants who have decided that their hearing is not going well (“did I just get a less than friendly look from the judge?”) might soon consider how they can “turn things around.” This kind of thinking will easily lead you into what I call ‘results-oriented’ thinking. ‘Resulted-oriented’ thinking is approaching each question from a single perspective: how will my answer effect my chances of winning my disability? Shaping your answers with an eye toward how your answer might or might not help you win disability is a sure way to invite the over-endorsement of limitations and symptoms that might not be fully supported in the medical record.
Avoid over-analysis and results-oriented question response in your hearing: just answer the questions truthfully and completely, and true the fact that you are truly disabled, and that the administrative law judge will recognize that fact and issue a fully favorable decision.
10. Bring you anger and frustration about your prior disability denials into your ALJ disability hearing
Your disability claim will have been denied twice before you get a hearing in front of an administrative law judge. Most claimants are frustrated and upset with the disability process. Social security often makes many mistakes in analyzing claims, including failing to order the correct doctors records.
But your ALJ hearing is “de novo”: that is, the ALJ is not bound by the prior denial decisions. Don’t waste time in your hearing pointing out what a poor job social security did with you case up to this point.