FAQ

At the hearing level, many Administrative Law Judges (ALJs) will invoke ‘Rule 3.7: Lawyer/Advocate as Witness’.  Under the advocate-witness rule, you cannot serve as both advocate (via the SSA-1696) and witness.  The ‘witness’ is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. This dual role can give rise to a conflict of interest.

In your case, the ALJ viewed the 3^rd Party Function Report you completed as ‘providing witness testimony’ which can prejudice the ALJ’s decision. Often, the ALJ will recognize that the SOAR case worker is not familiar with this rule, and educate them on their options.  When there is other evidence in the file and the SOAR case worker does not need to testify themselves, they will remain the official 1696 representative. By doing so, they are able to cross examine expert witnesses and directly examine the applicant (i.e. ask them questions in front of the judge during the hearing).

Not really.  There are many reasons for this.  Firstly, hearings are tape recorded and physical movements won’t show up on audio.  As well, any physical limitations that are the basis of a disability claim must have medical records to back it up, not just an ALJ’s observations. Courts have discounted “sit and squirm” opinions from ALJs who “eyeball” the client, and say they have no back problems, for example, because they sit in a hearing for two hours in no obvious discomfort.  DDS is supposed to consider the claimant’s capacity to perform work activities on a sustained basis, not just on what they can or cannot do on a one-time basis.  (See Social Security Rulings 96-8p and 96-9p) https://www.ssa.gov/OP_Home/rulings/rulfind1.html#YRT1996)

ALJ hearings may be conducted using video teleconferencing (VTC) equipment, rather than in-person, if there is equipment available to conduct a VTC hearing and if this would be more efficient than conducting an appearance in person. Applicants have a right to object to a VTC hearing if using the VTC model would cause undue hardship or for other reasons specified in HALLEX regulations. 

Here is a link to SSA data on length of time it takes to get a hearing, by hearing office:  https://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html.   You can also see how many video vs. in person hearings a particular office does, though there is much local variation on how cases are assigned to in-person vs. video dockets. While VTC hearings generally come up quicker, this is in the context of long wait times for hearing scheduling generally.  

It is our opinion that all applicants at the hearing level should be represented by someone who is knowledgeable about preparing and presenting claims at the ALJ level.  ODAR will have a staffer who will assist with the equipment, but not much more than that. An advocate will be able to directly examine the applicant and cross examine any experts that are present, e.g. vocational and/or medical experts.

RFC forms are very useful and can be a vehicle for the treating source to provide medical opinion evidence, forcing the ALJ to consider it.  Sometimes the ALJ will discount the RFC form if he/she feels that it is not supported by the medical records.  For instance, sometimes a doctor will give the opinion that the applicant “can sit for 30 minutes” but nowhere in the medical record is there anything about this at patient appointments. So, be aware of that.  Also, be sure that the answers on the form are internally consistent. 

For the second question, once DDS determines the applicant has met a Listing (at Step 3 of the Sequential Evaluation), DDS stops developing the claim for other impairments.  DDS looks at the applicant’s RFC at Step 4 and Step 5.  The applicant’s RFC is determined and compared to the physical and mental demands of the past relevant work (Step 4). When it is determined that the applicant cannot perform past relevant work, RFC, age, education and past work experience must be considered to determine if there is other less demanding work the applicant can do.

Finally, RFC forms which are designed with space for the physician to provide their medical opinion, and not merely a form with check off boxes, is most effective. 

In order to address the question of whether an applicant is capable of returning to work performed within the past 15 years, the ALJ will generally call a VE to testify. The VE is usually a licensed professional counselor, a vocational rehabilitation specialist, or another professional whose career has involved job placement, career counseling and working with people with disabilities. Although the VE is called by the ALJ, the VE is neither a government nor an applicant’s witness. The VE’s task is to offer a neutral opinion based on (1) the evidence and (2) the ALJ’s determinations as to the applicant’s functional limitations. The VE reviews the documents in the file which pertain to work, e.g. detailed earnings record, disability report, and work history report.  The ALJ will create a hypothetical for the purpose of eliciting the VE’s opinion on the applicant’s capacity to return to past work (Step 4) or perform other work in the national economy (Step 5). For more information on cross examining the VE, please contact Pam Heine at the SOAR TA Center, pheine@prainc.com.  Read more here: https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-74.html.

For the second question, the job must exist in significant numbers in either the national or local economy, where the applicant lives. Read more at https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook-508.pdf.

No, it is our opinion that all applicants should be represented at the hearing by an individual who is knowledgeable about Social Security's decision-making process at the ALJ level, whether it be a lawyer, paralegal, or a SOAR case worker. Administrative Law Judges follow fairly strict rules about how to decide disability cases and what evidence can be considered. Although applicants can represent themselves “pro se” (i.e. “for oneself”), it is in their best interest to secure representation.  The applicant may find it difficult to learn enough about Social Security law to advocate for themselves professionally at the hearing.

Yes, the applicant will have a chance to speak for him/herself. The representative will ask the applicant questions which is called “direct examination.”  This gives the applicant a chance to tell his or her story. Also, the ALJ will often begin the hearing by asking the applicant questions. Remember, the ALJ level is the first time the applicant is seen face-to-face by SSA.  The earlier stages are paper reviews.

HALLEX (Hearings, Appeals and Litigation Law Manual) is a publication from the Social Security Administration's Office of Disability Adjudication and Review (ODAR). ODAR administers hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX contains policy statements from the SSA's Appeals Council, as well as procedures directed to lower levels of the SSA for carrying out the SSA's guiding principles

This is definitely something we hear quite a bit and a very pervasive rumor that an applicant has to be denied X number or times, or can only win on appeal. The truth is that if the evidence is in the initial filing showing that an applicant meets the criteria for SSI or SSDI, he/she will be approved at the initial stage. Using the SOAR model results in higher approval rates (see our national outcomes) because we focus on getting all of the information in the file from the beginning, whereas many people who are eligible for benefits are denied because they don’t have assistance in gathering this documentation.

Some lawyers who take fees for assisting with disability claims specialize in appeals and don’t provide the evidence in the initial stage – they wait for the application to be denied and then work on the appeal. For an application at the appeal stage to be successful, the vast majority of the time it requires new evidence that wasn’t originally presented (there are some cases that are overturned due to oversights at DDS). So, it’s not that DDS wants to deny the case from the beginning, they just didn’t have the right information. It doesn’t save them any money to automatically deny people and then send them to appeal (in fact, it actually costs them more money in adjudicator time, medical records requests, and consultative exams).

All of that said, we understand why people think this is true. The overall national approval rate for SSI/SSDI (without SOAR) is only 29%. So yes, that means 71% of people are denied. It's not possible to know how many applicants needed more evidence and how many just didn't meet the disability criteria, but it certainly leads to many myths about the process.

It's never been too long! You are welcome to submit your documents for the SOAR Online Course practice case at any time and the system will never time you out.

If you have specific questions about your practice case, email them to soaronline@prainc.com.

All complete packets submitted to SOAR TA Center will be reviewed within 10 business days. If your application packet is complete and without major errors or omissions, you will receive a Certificate of Completion. If there are significant errors/omissions, you will be invited to revise your packet and resubmit it for a second review. Once we receive your updated documents, you will hear from us within 7 business days. If the errors/omissions have been corrected, you will receive a Certificate of Completion.