Prepare carefully for your social security hearing – what you say can make or break your case

A social security disability hearing is an informal appearance before an administrative judge who has the power to order a claim accepted. The person applying for SSD insurance frequently is their only witness and their description of their disability is critical to their case.

But will a claimant’s testimony be enough to win their claim? That depends largely on other medical or vocational evidence in their case.

Two recent decisions of the federal appellate court governing Oregon explain how a social security judge must evaluate a claimant’s testimony, in particular when the judge can disregard what a person says about the severity of their symptoms and their ability to function in a job.

This means that preparing for a hearing is crucial to avoid pitfalls when a judge considers if benefits should be allowed. Obtaining necessary medical reports and addressing past work experience can strengthen a claim and make success more likely.

In the first case, Vasquez v. Astrue decided in November 2008 by the Ninth Circuit Court of Appeals sitting in San Francisco, the claimant was 52 when she filed for SSD because of severe back injuries and a significant learning disability. The judge agreed she no longer could work as a housekeeper, but decided she probably could do other jobs in the national economy. The judge said her testimony of severe pain was not totally believable because medical records did not verify the level of severity she described.

The federal court disagreed, and reversed the unfavorable decision. The applicant only was required to present medical evidence proving she suffered a condition that reasonably could have caused any degree of discomfort. To disregard that testimony, the administrative judge needed to “point to specific facts in the record that demonstrate that {the claimant} is in less pain than she claims.” Because the judge could not, he was ordered to accept her testimony as true.

Vasquez v Astrue, 547 F.3d 1101 (9th Circ., 2008) can be found at http://www.ca9.uscourts.gov/datastore/opinions/2008/11/05/0616817.pdf

In the second more recent case, Bray v. SSA, the Ninth Circuit sitting in Portland reached a similar conclusion in a claim where the administrative judge decided a claimant had sufficient “transferrable skills” to do other jobs in the economy. The judge decided Ms. Bray probably could do a number of jobs because she had performed fairly sophisticated jobs in the past including working as a medical assistant and an insurance underwriter.

The federal court again disagreed, and ordered a new hearing to determine exactly what skills Ms. Bray possessed, if any, that would help her find work in the current economy. Her past work experience was years before, and given the passage of time, did not necessarily mean the skills were currently marketable. To find a person could work elsewhere, the court said a social security judge must identify “the particular skills she possessed” applicable in today’s workforce. Because of her age (older than 55) the claimant’s past skills must be enough that only minimal “vocational adjustment” was needed; if skills were too outdated, in other words, they were not transferable and not evidence she could be employed today.

Bray v. SSA (9th Circ., February 6, 2009) can be found at http://www.ca9.uscourts.gov/datastore/opinions/2009/02/06/0636072.pdf

To learn how the attorneys at Cary Wing Edmunson P.C. can assist you, please call our office at 541-485-0203 or Toll Free at 1-800-624-4406.

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