Avoiding Social Security Hearing “Gotchas”

Pitfalls, traps, “gotchas”—no matter what name you want to call them, we have seen all too many disability cases destroyed not by an applicant giving the wrong answer to a question at a Social Security disability hearing, but by the applicant giving an incomplete answer. Let us explain what we mean.

During your hearing, the Administrative Law Judge (ALJ) who is presiding will ask you questions about what you are physically capable of doing. He or she will ask questions like: “How long can you stand?” “Can you walk a mile?” “How do you spend your typical day?” Can you do the dishes?” The ALJ is not intentionally trying to trip you up, but rather, he or she is attempting to determine your “residual functional capacity” (RFC); that is, what you can still do despite your impairments. The ALJ is trying to get a handle on what you are capable of doing during a work day and a work week.

Many applicants misunderstand the purpose of the ALJ’s questions and they are afraid of being judged as a lazy person. So, they might answer the “Can you do the dishes?” question with “Yeah, I can do that.” But what they may be leaving out is that they can only stand at the sink for five minutes at a time before pain makes standing unbearable, so they have to take several rest breaks to get through a full sink of dishes. If you are asked about walking a mile, answer honestly. But if you are only well enough to walk that mile on a really good day which may only occur once a month, you need to tell that to the judge and be specific and detailed in your answer. Tell the truth. Do not exaggerate your condition, but on the other hand, do not minimize your symptoms.

Judges will be probing for exact numbers. Far too many times, applicants may answer a question like “How long can you stand?” with an answer like “I don’t know. I haven’t timed it.” Before your hearing you need to think about some of these questions and be prepared with accurate and detailed answers. During the hearing you need to stop and carefully think through each question before answering. That is why we at Nash Disability Law believe in carefully preparing our clients in person well in advance of the hearing, rather than showing up on the day of the hearing and hoping for the best. With our preparation, clients will be much less likely to be tripped up on pitfalls, traps, or “gotchas”. (For more on the importance of meeting your lawyer and preparing prior to the hearing, see our blog post “A Dirty Social Security Disability Secret.”)