Presenting evidence at a Social Security Disability or SSI hearing

You can present evidence in the form of medical records or a statement from a physician at a disability hearing. However, this is not just an option, it is a necessity. This is because, while at the first two levels of the disability evaluation system a disability examiner will have the full responsibility of obtaining the records from your treatments sources...when your claim gets to the hearing level, the social security administration (SSA) will not do any further evidenciary development on your case.

Claimants who appear at social security hearings unrepresented may be very surprised to learn that the very last time that medical records were gathered for their claim was when their reconsideration appeal was decided (the reconsideration appeal takes place AFTER the disability application has been denied, and BEFORE a disability hearing is requested). This will mean in all cases that there will be no current medical records in the claimant's social security file, thus making the likelihood of achieving an approval very low (and nearly impossible).

Individuals who have requested a disability hearing before a federal administrative law judge need to make sure that by the time their hearing takes place there are current medical records in the file. This means that, in addition to the older records (which can prove onset, i.e. how far back the disabling condition existed), there should also be records that are not older than 60 days in the file.

This is because in order for an individual to receive a Social Security Disability or SSI award, there must be evidence available to the adjudicator (decision-maker) that proves that they currently meet the SSA guidelines and criteria for receiving disability benefits.

Claimants who are not represented at the time of their hearing should attempt to obtain updated medical records sometime before their hearing takes place. And once they have obtained those records, they should send copies (claimants should always keep original documents in case mailed documents are lost) of those records to the hearing office so they can be added to the case file.

The problem with this, however, is timing when to request the medical records. Gathering medical records too soon will mean that they, too, may be outdated by the time a hearing occurs. And requesting them too late may mean that they not have arrived at the time the hearing occurs.

Typically, disability lawyers will use a series of notifications from the hearing office as "signals" for when requests for medical records should be sent out. Requests for medical records "can" be sent out when the notice of hearing (a notice that states when and where the hearing will take place and with which judge) has been received from the hearing office.

However, this, too, can pose a problem since social security hearing offices are not required to send hearing notices any sooner than 20 days before the hearing--and 20 days is very often not enough time to send a request for medical records to a doctor or hospital and realistically expect to receive records back.

For this reason, many disability lawyers actually send their requests for medical records sooner than this, choosing to send out requests for medical records when the ODAR (office of disability adjudication and review, otherwise known as the hearing office) has compiled the exhibit list and then mailed a copy of this to the disability lawyer handling the claim.

What is the exhibit list? It is a listing of all the exhibits that may play a role in the hearing and that may potentially be referred to. Exhibits include all the medical evidence on file, but also copies of the claimant's initial application, reconsideration appeal, and any questionaires that the claimant completed (such as the work activity questionaire and the activities of daily living questionaire).

When the exhibit list has been received, this is a signal that the timing is right to request medical records from the claimant's doctors--because the hearing will most likely be scheduled in the near future.

Claimants not only have the right to present medical evidence at a hearing, they have the responsibility of doing this (either by themselves or through their disability representation)...if they hope to have any chance of winning Social Security Disability or SSI benefits.

About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.

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