Telephone Hearings, Video Hearings and Waiting for Godot.
July 27, 2021
Social Security has adapted to the COVID 19 pandemic rather nimbly for a gargantuan government agency. The SSA Office of Hearing Operations where SSA’s Administrative Law Judge’s preside over the world’s largest civil litigation docket has moved to telephone hearings, video hearings via Microsoft Teams ™ and in some instances, claimant’s stating that they want to wait for an in person hearing.
I can’t advise anyone at present to tell SSA they want to wait for in person hearings. Like Godot in the Beckett play, ‘Waiting for Godot’ the in person hearing does not seem like it will ever arrive. I’m vaccinated, every judge who I have talked with is vaccinated, and there are certainly many claimants who are also vaccinated so why can’t we have in person court days yet? Got me. However it does not appear that it is likely to happen any time soon.
Let me share with you my insight on the merits / drawbacks of doing your hearing by video or telephone.
Phone hearings are obviously voice only affairs done via conference call. If you get a phone hearing you do not need to leave your home and your lawyer can be at their office or home. The judge also cannot see you. The judge not being able to see you cuts in both directions, and it depends on who you are and what is wrong with you whether it helps you or hurts you. I have had cases in my career where the medical record appeared kind of thin (usually because of poor access to care) but the client was very ill and sickly appearing and the impact of that appearance had some sway on the Judge. I have also had occasion with clients during our prehearing conferences to have to say, “I love that color of green you have your hair in today, but when we go to court can we have it in a shade found in nature?” Or “I think that tattoo on your neck/arm is fantastic, but I’m not sure how the judge might feel about it so can we wear a buttoned collar, or long sleeves?” Phone hearings; face tattoos? No problem!
The bigger advantage of not being seen by the Court during the hearing is for my clients who are nervous or forgetful. When I prepare each client for hearing I know what judges start their hearing by saying to the client; “Tell me the problems you have that keep you from being able to work.” The client who is nervous because they don’t go to court regularly, and because this hearing is a really big deal for them that they have waited a long time to have, then proceed to only identify one or two of the five things that keep them from being able to work. Then I have to come back later in the hearing and ask, for instance; “I see in the medical record that back in 2019 you had a pretty bad heart attack, did you have any problems from your heart after you got out of the hospital?”
So I work to fix it and usually it’s fine, but on occasion I wonder if the judge is thinking; ‘They don’t really get short of breath walking more than 50 feet, or they would have volunteered it when I asked about the problems that disable them…’ So for the judges that I know who lead with the ‘tell me what problems you have’ question, I tell my telephone hearing clients, go ahead and list them on a paper you can keep in front of you at hearing time. There is absolutely nothing improper about having notes of things you want to be sure to touch on during your hearing in front of you that you are afraid you might forget to say during court.
The video hearing advantage is that the judge can see you. The downsides are that most people when they first use Microsoft Teams ™, face somewhat of a learning curve and the hearing can be delayed in starting. Clients also need to have access to reliable high speed internet and an up to date computer or tablet. Few disability claimants are in position to have that kind of internet and computer set up.
I would recommend that each person facing a disability hearing in 2021 talk to their lawyer about what kind of hearing they want to have briefly after the request for hearing is submitted. If you do not already have an attorney helping you with your disability claim you should call my office at 1-877-966-1212, if it is after hours, dial 5 to set an appointment.