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Social Security Disability:  Should I ask for a live hearing or consent to a video hearing?

Tuesday, 15 August 2017 15: 30
Written by Joni B. Bailey
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"I have a Social Security Disability claim hearing coming up.  Should I have a live hearing or a video hearing?"

According to the Social Security Administration, video hearings increase efficiency.  This is very important because the backlog of claims is growing

There are several advantages to having a live hearing that you should consider.  It could mean the difference between receiving disability insurance benefits or not.

What are the advantages to having a live hearing?

In my experience, judges seem to actually prefer live hearings because it is a more human experience. Judges are able to interact with the court monitor, the representative, the claimant, and the vocational and medical experts if they are physically present at the hearing location.

Given the intense workload that administrative law judges are burdened with (hundreds of hearings a year), an in-person hearing is probably very refreshing. 

In a video hearing, the judge must watch the claimant on a video screen and look at documents on a computer screen at the same time.  They sit in an office alone for hearing after hearing all day long.  For some judges, that might make a tough job even tougher.

In my experience it seems that there is a slightly greater chance of a favorable decision in some "close call" cases if the judge and the claimant are in the room together.  

This is not a scientific conclusion, just my impression.  Perhaps this happens because the judge’s natural empathy response is invoked by human contact instead of a more calculated and cerebral assessment of the evidence. 

There is a difference between empathy and sympathy.  Maybe being in the room makes empathy more likely.  This little video is thought provoking and charming and illustrates the power of being in a space with another.

Sometimes a claimant has not received a lot of medical attention for his or her disability conditions—that is a “close call” case. 

The judge always considers why the claimant did not go to the doctor or the counselor even though he or she says the problems were so severe they interfered with work.

The judge can give a great deal of weight or very little weight to the claimant’s description of the impairments and symptoms.  This makes the difference between a favorable and an unfavorable decision; the difference between having income and not having income.

If the judge is in the room with the claimant, it is more likely they will empathize with the claimant when he or she explains that transportation, or finances, or insurance problems kept them from seeing a doctor frequently.

Claimants with these five medical conditions are probably easier for the judge to assess in a live hearing.

We all know that some people have disabling conditions that are obvious when you meet them face to face and see them try to walk, stand up from a chair, handle objects, or carry on a conversation.

If a claimant has impairments that are obvious upon meeting him or her in person, a live hearing is a good idea.  

Here are some examples:

  • Tremors of face or hands
  • Skin disorders that interfere with the use of hands
  • Impairments that cause difficulty walking, sitting, arising from sitting
  • Anxiety disorders that interfere with the ability to carry on a conversation
  • Breathing disorders that cause shortness of breath with activity or shortness of breath with normal conversation

On the other hand, if a claimant seems perfectly normal when you are around them for a few minutes, a live hearing might actually hurt their chances of winning the claim.

Sometimes judges get the wrong impression at live hearings.

Several years ago I had a client with a severe autoimmune disease that caused pain and inflammation in her joints, cognitive changes, and difficulties digesting food.  Every time I met her she looked at least 20 years older than her stated age.  She looked exhausted and ill.  She lost weight between each visit. On the day of the hearing her sister “helped” her by doing her hair and makeup and buying her a new dress. She looked better than I had ever seen her look.  After the hearing, the judge denied her claim; it took years to appeal and get a favorable decision based on the medical records and her doctor’s letters explaining that she was not able to function in any work environment on a full time basis.

Claimants like these probably should not request a live hearing.

  • Claimants who might smell like alcohol from drinking the day before
  • Claimants who smell heavily of cigarette smoke
  • Claimants whose impairments affect their ability to stand or walk but it is not obvious when they walk short distances
  • Claimants who “look perfectly healthy” but are suffering from serious medical conditions
  • Claimants whose hands look like they have been doing physical labor when they alleged they have been unable to work for 2-3 years

What is the cutoff date for requesting a live hearing?

The cutoff date for requesting a live hearing is 30 days from the date you receive the letter with the Objection to Appearing by Video Teleconferencing form.  This date may be extended if you can show that you have “good cause” for the delay.  

A claimant will not be able to change from a video to a live hearing once the hearing has been scheduled without extraordinary circumstances.

The Social Security Administration generally considers whether or not the claimant actually received the Notice and whether the claimant had the capacity to communicate. 

Regulations provide:   “If you notify us that you object to appearing by video teleconferencing more than 30 days after the date you receive our notice, we will extend the time period if you show you had good cause for missing the deadline. To determine whether good cause exists for extending the deadline, we use the standards explained in § 404.911:

Examples of circumstances where good cause may exist include, but are not limited to, the following situations:

  • You were seriously ill and were prevented from contacting us in person, in writing, or through a friend, relative, or other person.

  • There was a death or serious illness in your immediate family.

  • Important records were destroyed or damaged by fire or other accidental cause.

  • You were trying very hard to find necessary information to support your claim but did not find the information within the stated time periods.

  • You asked us for additional information explaining our action within the time limit, and within 60 days of receiving the explanation you requested reconsideration or a hearing, or within 30 days of receiving the explanation you requested Appeal Council review or filed a civil suit.

  • We gave you incorrect or incomplete information about when and how to request administrative review or to file a civil suit.

  • You did not receive notice of the determination or decision.

  • You sent the request to another Government agency in good faith within the time limit and the request did not reach us until after the time period had expired.

  • Unusual or unavoidable circumstances exist, including the circumstances described in paragraph (a)(4) of this section, which show that you could not have known of the need to file timely, or which prevented you from filing timely.

The form is confusing, do I send it in or not if I am okay with having a video hearing?

Don’t send in the form if you are comfortable with having a video hearing.  Since it is an objection form, the only reason you should send it back to the SSA is if you do not want to have a video hearing.

Not sure whether you received this form?  Click to download a sample form (PDF format).

Will asking for a live hearing make it take longer to get a hearing?

Possibly.  The answer in your particular case will depend on the hearing office and the number of other claimants in your region who have asked for a live hearing.  The scheduling clerk will wait until there are enough hearings to fill a day at a live hearing location near you.  The clerk must give each claimant notice no less than 75 days before the hearing date.

The Office of the Inspector General recently reported that SSA’s average processing time on hearings has increased from 426 days at the end of Fiscal Year 2010 to 543 days at the end of Fiscal Year 2016. 

For the Evansville, Indiana hearing office, I am seeing average processing times of 550 days for hearings scheduled late in 2017, a slight improvement compared to late in 2016.

How do I know whether to ask for a live hearing or not?

Your representative should be able to give you advice on this issue.  If you have never met your representative in person, they might not be able to give you the best advice. At the Law Office of Joni Beth Bailey, clients meet Attorney Joni Beth Bailey in person when the request for the hearing is filed and at other times during the claim. 


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