Thursday, September 04, 2008



Will a Disability Judge advise you to get representation?

On a number of posts here, I've mentioned that if you go to a social security disability hearing or SSI hearing without representation, there's a good chance that the disability judge will advise you to A) reschedule your hearing so that B) you can find representation on your disability claim.

However, I was speaking to a field office claims rep at a social security office and this individual told me that, in their opinion, the majority of administrative law judges do not,in fact, do this. What led this individual to this conclusion? The fact that so many claimants go to hearings without a disability attorney and do not reschedule. Sounds logical. Claimants who are advised by the judge hearing their case would, most likely, find it wise to get representation if so advised.

It begs the question. Why would a judge not advise a claimant who shows up unrepresented to get a disability lawyer. I can only assume that either the judge doesn't care and simply wants to clear cases from his or her caseload, or that the judge at one time did this, but has now begun to view all claimants who make this mistake as "one and the same", i.e. "let them represent themselves if they think that's a good idea".

Of course, it's never a good idea to do this. A person who appears at a hearing will typically not know anything about the decision history of their own case. Chances are, they will not have reviewed their own social security disability file, will not know why their application for disability was denied, why their request for reconsideration was denied, and will certainly not know how to prepare for a disability hearing in order to avoid being denied again.

Other things an unrepresented claimant won't know: A) how to effectively argue that the classification of their past work may be incorrect, based on the actual duties they performed, B) how to argue that, based on their medical evidence, that their functional limitations (mental or physical) are greater than was determined by disability determination services (the agency that decides disability cases for SSA), C) how to argue that, in light of their limitations, age, education, and work skills, that they are incapable of performing suitable other work.

Then, of course, there is the aspect of hearing preparation. This involves not only knowing what is in the social security disability file, but also how to add to it and strengthen it. Strengthening it may involve developing an argument for a disability approval on the basis of meeting a listing in the social security disability list of impairments (the blue book). It may involve getting additional records, including statements from a treating physician, and sending them in to the administrative law judge hearing the case. It may also involve, in a children's case, successfully obtaining questionaires from a child's teacher, a person who is well suited to provide first hand observations of a child's ability to engage in age-appropriate behaviors, or not.

There's actually very little that a claimant who shows up unrepresented at a hearing will know how to do to succesfully argue their case. And for this reason disability judges should always point out the fact that representation is an option they should consider. Judges who don't do this, of course, are not serving the best interests of claimants, but possibly their desire to clear their own caseloads.




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