How Can my ALJ Misunderstand my Evidence at my Social Security Hearing?


Q & A with 25+ year Social Security Disability Attorney Andrew Kinney

Q:  What can my Social Security ALJ misunderstand about my evidence at my Social Security Disability benefits hearing?

A:  ALJ’s, as your Social Security judge is called, will form opinions about you based on your employment history and medical treatment record.  These opinions, right or wrong, can influence how your hearing goes even before you walk into the hearing room.  Unfavorable hearing decisions are created by templates that attack weaknesses in claims—even if they are merely assumptions.  Unfair or not, you need to be aware of the kinds of assumptions your ALJ may make about you.  Fight errors!

Q:  What might the ALJ assume about me?

A:  Here is a list of different scenarios that occur in Social Security hearings, assumptions that may arise from them, and how to combat them at your hearing:

  1. When your medical treatment is sparse or nonexistent, your ALJ may assume you are healthy. In this situation, your Social Security attorney needs to ensure that your ALJ at your hearing understands that you may have lost your insurance, been homeless, lacked physical access to treatment, or that chronic conditions do not require the need for ongoing care.  In the last case, conditions such as cerebral palsy or low IQ may not warrant annual treatment or medications.  So, once you apply for Social Security Disability or SSI benefits, treat regularly for ALL your medical conditions that limit your ability to work.  Retesting for chronic conditions may be necessary as well.  Also keep in mind your ALJ is not a doctor.  He or she may make assumptions about your remote treatment history for your chronic medical problems.  For this reason, touch on your remote medical history at your hearing!
  2. When your work history is poor, your ALJ may assume you are simply not motivated to work. In this situation, your Social Security attorney needs to ensure that your ALJ understands that you may have remained at home to care for children, care for a sick family member, or had unreported work.  SSA can see your work history.  It is difficult to prove you cannot work if it appears you have never tried.  Speak with your Social Security attorney about this.
  3. When you currently do not take medications, your ALJ may assume you are either healthy or non-compliant (failing to follow your doctors’ treatment). In this situation, your Social Security attorney needs to ensure that your ALJ understands that you may have had: (1) an addiction history that precludes you taking pain medications, (2) no access to insurance, or (3) a history of adverse reactions to other medications you are expected to take.  Make sure that the ALJ, and your doctors, understand your reality.

In my experience, Social Security hearings are error-prone because assumptions are made all the time about what is NOT in the evidence.  While your claim is pending, find trustworthy medical providers who follow through on treatment, make timely specialist referrals, and order the right testing.  You deserve the best medical treatment, and the best treatment gives you a better odds of either returning to work or proving disability.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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