Famous Last Words—“I’ve got this! I don’t need an attorney at my Social Security disability hearing!”
My earlier blog posts have looked at the importance of effective representation from the perspective of the claimant in a series of articles focused on how a representative can help a claimant keep from sabotaging his or her claim.
This post takes a look at this issue from the other side of the bench – from the perspective of the administrative law judge.
Self-represented Claimants Can Get in the Way of Fair and Efficient Hearings.
ACUS, the Administrative Conference of the United States released a report on September 7, 2016, exploring the challenges created by self-represented parties in administrative hearings. ACUS has been working on this project with The Department of Justice’s Office for Access to Justice since April 2015. The collaborators seek to develop best practices and make recommendations for agencies to improve fairness and efficiency in administrative hearings. The Social Security Administration (SSA) is one of the agencies they studied.
A Judge’s Life Is a Grind.
The ACUS report explained that between 2011 and 2014 over 1,400 SSA administrative law judges (ALJs) issued between 680,000 and 820,000 decisions each year. About 77 % of claimants in SSA hearings had representatives, usually attorneys, for some portion of the proceeding.
Back of the envelope math tells us that based on those national figures each judge handles at least 500 hearings a year. Data compiled by the Social Security Administration confirms that the ALJ’s in Evansville, IN each decide at least 500 cases per year. This table shows dispositions for an 11 month period from 9/26/2015 through 8/26/2015.
Wrap your head around that workload for a minute. Assuming the judge takes at least 2 weeks of vacation and is involved in at least 2 weeks of training each year, that leaves 48 weeks for 500 cases. A judge must review, conduct a hearing, and prepare directions for a staff member who will write the decision in 10 or 11 cases a week. Every week. The typical hearing lasts 1 hour. If the average work week is 37.5 hours long, that means the judge has an average of only 3 ½ hours per case and only 2 ½ hours to review an administrative record.
A typical Social Security disability file is usually 1,000 pages long and includes hundreds of pages of hand written function reports submitted by the claimant and several medical records and reports from doctors. If a judge reviews 3 cases a day, that means he or she is reviewing 3,000 pages a day. Every day. Except, of course, those days when there are 6 or 7 hearings.
Given this crushing work load, for the SSA judge, there is a big difference between a hearing with an experienced Social Security Disability attorney who has prepared the client well and a hearing where the client is basically clueless about what is going to happen in the hearing. If the judge is going to stay on schedule, that means he or she will have to spend several minutes explaining the process instead of listening to the testimony. The average self-represented claimant will not know how to make the best use of the 10 or 15 minutes left when it is his or her turn to talk.
Social Security Hearings Are Non-Adversarial Proceedings.
“Non-adversarial” means there is no attorney in the room representing the Agency. The judge, although accountable to SSA in many ways, actually has a duty to help the claimant understand the process and develop a complete record. If a claimant appears without a representative, the judge will take time to explain how an attorney can help the claimant in the hearing process. If the judge thinks the claimant does not understand the importance of the hearing or the importance of being represented, he or she will continue the hearing to allow the claimant to find a representative. Once a claimant has decided to go ahead without a Social Security Disability representative, they have waived their right to be represented and in most cases will not be allowed to change their mind and ask for another hearing with a representative.
Social Security Hearings Are Short.
Most Social Security Disability hearings last an hour or less. If the judge has to spend 15 minutes explaining the issues and the burden of proof to a claimant that will reduce the amount of the time that the claimant will have to explain how their medical or mental health problems affect their ability to work.
Social Security Hearings Involve Expert Witnesses.
Most SSA judges call a vocational expert to testify about the claimant’s past work and the jobs he or she could still do with certain limitations. Some hearings also involve medical experts. Expert testimony is an extremely important part of a Social Security disability hearing. Experienced, skilled attorneys who focus their practices on Social Security matters study and collaborate with other attorneys to perfect their questions at this critical part of a hearing. It is highly unlikely that a self-represented claimant will know how to conduct an effective examination of an expert witness.
What Problems Do Claimants Encounter Now?
The ACUS report highlights these problems:
- Resources for self-represented claimants are currently scattered across many documents at many locations.
- Existing resources available on SSA’s website might prove confusing for claimants who find them. See, for example, the table of contents for the POMS and HALLEX.
- SSA currently has no single guide that explains every step of the appeals process – including how to file the appeal, which forms are required for each level of appeal, and when the appeal must be filed – that is written with a lay audience in mind.
- SSA provides a list of 137 forms on its website, but the forms are not organized in a way a lay audience can interpret.
- Nothing on the SSA website indicates which forms to file for a particular benefit, or in which order they must be filed.
- Claimants do not have access to the electronic portal that representatives use to access and manage appeals online.
I Can Tell By the Looks on the Faces of Self-Represented Claimants When They Come Out of the Hearing Room!
I have represented claimants at approximately 1,000 hearings. As I wait with my clients for our hearings to begin, I see the faces of self-represented claimants as they go into and come out of the hearing room. The contrast is stark. Going into the hearing room, self-represented claimants often have this “I’ve got this!” look. But coming out, they always look confused and bewildered by what they have just experienced.
I regularly receive calls from claimants who decided to go it alone in the hearing. They want a representative to rescue the case after their claims were denied. I rarely accept cases at that point because it is usually too late for me to do the following things to help a claimant win his or her Social Security disability case:
- Assist the claimant in describing their daily life and past work in a clear, consistent way;
- Obtain written opinions from the claimant’s doctor;
- Obtain and submit all medical records in an organized manner to make it easy for the judge to review;
- Obtain and submit all documents that relate to the disabling impairment;
- Prepare the claimant for testifying in the hearing;
- Compose a hypothetical that contains the claimant’s residual functional capacity as established by the record;
- Question the vocation and medical experts at the hearing;
- Submit a brief to the judge; and
- Make an opening or closing statement to the judge.
Self-Help Materials Are Not That Helpful:
The ACUS report mentioned materials created the Connecticut Network for Legal Aid and Iowa Legal Aid Online but these resources really just provide an overview of the process and ultimately recommend finding an advocate.
If You Are Planning to Represent Yourself at Your Social Security Disability Hearing—Think Again!
The cost of representation is small (25% of the past due benefits up to a total fee of $6,000.00 in most cases) compared to the past due benefits and Medicare coverage you will receive if you win your claim. Let your Social Security Disability Attorney be the one that reassures you when he or she says, “I’ve got this!”