Social Security disability judges are under a great deal of pressure to only approve deserving cases. While outright fraud is relatively rare, judges are nevertheless trained to be skeptical about every claimant they see.
If you expect to win, you must come across to the judge as credible and believable. Moreover, you do not want to display an attitude of entitlement when you appear before your judge. You may be eligible for Social Security disability but you are not entitled to anything. You (and your lawyer) have to prove that you meet SSA’s definition of disability.
Don’t Show an “Attitude of Entitlement”
Some judges will look for a reason to deny your claim if they sense you have given up and decided for yourself that you are disabled. You want to present yourself as a fighter – unhappy with your current medically unemployed status and ready to try anything to get back to work.
Practice and Prepare Your Testimony in Advance of Your Hearing
Some judges will try to trap you into making outrageous statements during your testimony and they will rely on this testimony to find you “not entirely credible” and to deny your claim. Here are some traps to watch for:
Your testimony that you are unable to do anything at all. If the judge asks you what you do during the day, it is okay to say that you make yourself a quick breakfast or cup of coffee, that you watch TV, check your email or even that you spend time doing light cleaning, caring for pets or checking your email.
You should also describe any problems you have performing those tasks but you do not want to state that you do nothing at all, unless you are truly bedridden.
Try to avoid absolutes when you testify – words like never, always, and impossible. Also stay away from not very much, not too far, or not too long. These phrases mean nothing and can make your judge frustrated.
You should prepare with your lawyer and practice answering questions about what you do during the day, your physical capacities for lifting, carrying, sitting, standing, walking, climbing stairs, kneeling and stooping. These questions are asked in almost every case so they should not be a surprise.
Understand as well that your judge has reviewed your record carefully, and he/she will find any inconsistencies. Every case has flaws but if you lie about information the judge sees in your record, you will likely lose.
Examples of “Trick Questions”
Here are some examples of trick questions asked by judges in hearings:
Do you smoke cigarettes? If you smoke, there is a good chance your doctor’s records will reference this fact. If you smoke even one cigarette a week, answer this question honestly. Do not say that you are “in the process of quitting.” If you have tried to quit and failed, tell that to the judge.
Do you drive a car? It is okay if you drive two or three days a week to the grocery store, pharmacy or doctor’s appointment.
Do you now or have you ever used alcohol, smoked marijuana or used street drugs? Here, too, lab reports in your medical records will show if you have used street drugs or if there was alcohol in your system. You will be denied if the judge decides that your use of alcohol or drugs is a material contributing factor to your disability but you are better off telling the truth about any use of substance than to try to backtrack if the judge catches you in a lie.
Are you taking all your medications as prescribed? Your medical record will show a record of your prescription refills. If you are not taking medications you may be deemed non-compliant with treatment and if you are obtaining pain medications from more than one doctor, you will have to explain yourself. Here, too, an honest sit-down with your lawyer prior to your hearing would be wise.
Have you tried to work/volunteer/attend school since you filed your application? This information may very well be in your medical record or one of the myriad of forms you have filled out for Social Security.
Have you traveled anyplace more than an hour away from your home? This information may be in your medical record or it may be on the Internet – a Facebook page or Instagram post, perhaps.
The bottom line here is that you always want to tell the truth at your hearing, even if you are concerned that information you provide might hurt your case. Our experience has been that judges don’t expect disability claimants to sit at home in a recliner all day long, moaning in pain. Your activities should not be equivalent to work but you will not be penalized if you maintain some form of routine.
The key to success at your disability hearing is preparation. A good lawyer will ask the same probing questions as the judge and when you prepare with your lawyer you get the benefit of expert advice about how to best answer.