Just because you have been scheduled for an ALJ hearing does not mean that you are ready to win your case. There is much that needs to be done. As with anything in life, preparation is crucial.
Obtaining Records. By far the most important thing you can do to prepare for your ALJ hearing is to obtain all the medical records and other evidence needed to prove disability. Although SSA obtains the medical records at the first two levels (initial and reconsideration) of review, it is the claimant’s responsibility to do so at the hearing level. This means that it is the claimant’s responsibility to obtain updated records from all the treaters who have already produced records. This also means obtaining records from treaters who have not produced records to date. This may also mean producing school, employment and payroll records.
SSA’s policy is to send a written notice of ALJ hearing at least 75 days in advance, unless you waive your right to advance written notice. HALLEX I-2-3-15. As soon as you receive the Notice of Hearing, if you have not already done so, you should immediately start obtaining medical records. (In reality, you should periodically obtain and submit records while you are waiting to receive notice of your hearing. After all, you might have to wait 18 months or more.)
Obtaining records can be difficult. All medical providers require a written HIPPA-compliant release signed by you before they will release any records. Many of them will not respond very quickly to your requests, if they respond at all. They usually do not consider getting you your records a high priority. Some will say they cannot even find your records. Some will produce some but not all the requested records. Some will redact (black out) portions of your records. You must be vigilant and follow up regularly until you get the records you need.
Avoid submitting duplicate records. This just creates more work for the ALJ and the ALJ’s staff. You can ask SSA to send you a CD containing your entire case file. You should determine what records are on the CD, and then request only the additional records not on the CD.
Most medical providers will demand payment before they release records. Fortunately, California law provides that any patient or former patient or the patient’s representative is entitled to a copy, at no charge, of the relevant portion of the patient’s records, upon presenting the provider a written request, and proof that the records are needed to support an appeal regarding eligibility for a public benefit program such as Social Security disability. Health & Safety Code Section 123110(d)(1). The health care provider must produce such records within 30 days after receiving the written request. H&S Code Section 1123110(f). If the patient ultimately wins the appeal, then the medical provider can then charge the patient at certain stated rates ($0.25 per page, or $0.50 per page if copies are made from microfilm, plus “additional reasonable clerical costs”). H&S Code Section 1123110(e). However, the section providing for no-cost records does not apply to any patient who is represented by a private attorney who is paying for the costs related to the patient’s appeal. H&S Code Section 123110(d)(3).
Claimants have always had an ongoing duty to submit all written evidence known to them, or at least inform SSA about all written evidence known to them, that relates to whether or not they are disabled. This means all written evidence, both good and bad. See 20 CFR 404.1512. However, beginning May 1, 2017, claimants are now required to submit the evidence to the ALJ, or at least alert the ALJ about the existence of the evidence, no later than five business days before the date of the scheduled hearing. 20 CFR Sections 404.935(a) and 416.1535(a).
If you miss this deadline, the ALJ may decline to consider or obtain the evidence, unless you can show that your failure was excusable because: (1) SSA misled you; (2) you had some physical, mental, educational or linguistic limitation which prevented you from complying; or (3) there was some other unusual, unexpected, or unavoidable circumstance beyond your control which prevented you from complying. 20 CFR Sections 404.935(b) and 416.1535(b).
Sometimes, for whatever reason, a medical provider or other custodian of record will simply refuse to comply with your request for records. In this situation, it is not enough to simply alert the ALJ about the records, at least not if the records are important. This is because simply alerting the ALJ that these records exist does not mean he or she will try to obtain them. You should take the additional step of asking the ALJ to subpoena the records. You have the right to ask the ALJ to issue a subpoena, but you must make the request in writing at least 10 business days before the hearing date. See 20 CFR Sections 950(d)(2) and 416.1450(d)(2).
Missing these deadlines can be disastrous. It can mean the difference between winning and losing. While some ALJs may interpret the regulations liberally, others may be very strict. It is our belief that the new rules simply provide stingy ALJs another reason to deny cases. Don’t put yourself in a position of weakness, trying to convince the ALJ that your failure to comply with the rules was excusable. Do yourself a favor and comply at all costs. That means that if you are unable to obtain any of your medical records which bear on whether you are disabled, especially if you think they are important, alert the ALJ about these records, and also request that he or she issue a subpoena, at least 10 business days in advance.
Obtaining Opinion Evidence. Another important thing to do in preparation for your hearing is to obtain opinion evidence. Opinion evidence is a statement of opinion from your doctor or other treater. Opinion evidence is helpful when a matter is not readily apparent from the records alone. To illustrate this point, ALJs are required to determine your residual functional capacity, or “RFC,” which the SSA regulations define as the most you can still do despite your limitations. 20 CFR Section 416.945. Unfortunately, medical providers rarely state RFC opinions in their medical records, so it is necessary to try to have them state these opinions separately.
It is not enough for a medical provider to state a general opinion to the effect that you are disabled, such as “my patient cannot work” or “my patient qualifies for disability.” Medical providers are usually not qualified to express such opinions because such opinions require knowledge of vocational factors (job requirements) and/or legal requirements for establishing disability, which are usually beyond his or her expertise. Instead, medical providers should limit their opinions to medical opinions and identify the specific functional limitations caused by their patient’s impairments, such as how much weight the patient can lift and carry; how long the patient can sit and stand (both at one time and cumulatively throughout the day); whether the patient has postural (stooping, kneeling, crouching, crawling, balancing) or manipulative (reaching, handling and fingering) limitations; and whether the patient needs to lie down, elevate his or her feet, take unscheduled breaks, use assistive devices, etc.
Most California Social Security lawyers have a library of fill-in-the-blank forms, known as “RFC Questionnaires,” or “Medical Source Statements,” which they can give to their clients to take to their doctors. These forms ask the doctor to answer specific questions about their patient’s physical and/or mental limitations. The forms are designed so that the answers are in a vocationally-relevant format that can be used to preclude jobs.
If your doctor fills out such an RFC form, and does so in a thorough and credible manner, that can go a long way in helping you win your case. You should ask all your doctors whether they are supportive of your disability case and whether they would be willing to fill out an RFC form. It is okay to submit completed RFC forms from multiple doctors if they are willing.
However, many doctors are unwilling to fill out RFC forms. They either do not believe their patient is disabled, or they see their role as healers, not enablers, or their “office policy” prevents filling out forms, or they simply do not have the time, or they want money to fill out the form. It is possible that none of your doctors will fill out RFC forms. If that is the case, do not despair. It does not mean that you will automatically lose. Your case may be strong enough based on the records alone.
Some doctors are unwilling to complete fill-in-the-blank RFC forms from lawyers but are willing to write letters using their own words. If your doctor is only willing to write a letter, then by all means ask him or her to do so. Sometimes letters have more impact than a fill-in-the-blank form, as long as specific limitations are stated.
As stated above, you are required to submit all evidence bearing on the issue of disability, good or bad. That means that if your doctor fills out an RFC form or writes a letter, but does so in a negative way that hurts your case, i.e., by saying your limitations are not significant, then you are still required to submit the completed form or letter to the ALJ. This means that it is very important, in advance, to make sure your doctor supports your disability case prior to asking him to fill out a form or write a letter. In other words, do not ask your doctor to fill out a form or write a letter unless you are certain he or she will do so in a favorable way that helps your case. After all, you have no legal duty to actually create unfavorable evidence.
Arranging for Witness Testimony. The Notice of Hearing says you have the right to call witnesses. However, the ALJ will not arrange for your witnesses to attend. (The ALJ will usually only arrange for a vocational expert and possibly a medical expert to attend.) Therefore, if you intend to call witness(es) to testify on your behalf, then you must make your own arrangements for said witness(es) to attend. If you have a witness who cannot attend, then you can have them write a letter to be used in lieu of in-person testimony, but such a letter must be submitted at least five business days in advance. 20 CFR Sections 404.935(a) and 416.1535(a).
If you have a witness who is crucial to your case but refuses to attend, the Hearing Notice says you can ask the ALJ to issue a subpoena compelling his or her attendance, as long as you do so at least 10 business days in advance. See 20 CFR Sections 950(d)(2) and 416.1450(d)(2). However, in reality, we have never seen an ALJ actually do this.
Submitting a Pre-Hearing Brief. It is good practice to submit a Pre-Hearing Brief. The best California Social Security attorneys do so in every case. Pre-Hearing Briefs are useful in pointing out the important evidence, making legal arguments, stating your legal theory, and basically educating the ALJ as to why you (or your client) should prevail. A good Pre-Hearing Brief can cause the ALJ to be already leaning in your favor when the hearing starts. Even better, a good Pre-Hearing Brief will sometimes cause the ALJ to cancel the hearing and issue a Fully Favorable Decision instead.