I recently posted a case study describing a case I tried involving a woman with a variety of well documented and severe medical problems. This case was initially tried by another lawyer before a judge who denied it despite a very strong medical record that pointed to a finding of disability.
After the hearing claim denial, the client filed an appeal and the Appeals Council reversed the ALJ’s decision and sent the case back for a second hearing with specific instructions for the ALJ to consider all of the claimant’s limitations. Fortunately, the hearing office assigned to this claim has changed and a different judge was assigned this case. As I note in the case study, I got the sense that the new judge quickly saw that this case should be approved and she issued a bench decision granting benefits.
What happened in the first hearing that the judge would deny a claim that clearly should have been approved. Based on my review of the record, there were two problems with the first hearing:
- the first issue was that the lawyer in the first hearing did not appear in person. This lawyer is based in New England and he arranged to appear telephonically. Having appeared before the judge who presided in the first hearing, I would guess that the judge was not very enthusiastic about a lawyer who did not physically show up. I can only imagine the scene – my client sitting there by herself in front of an intimidating judge with her attorney 1,000 miles away.
- second, I know from experience that the judge in the first case has a real problem with claimants who smoke. This judge believes that anyone who smokes is intentionally harming her health and he feels that a smoker’s credibility is inherently suspect because that claimant is intentionally damaging her prospects for recovery.
The end result from that first hearing was an unfavorable decision that was deemed so flawed by the Appeals Council that my client, acting on her own without a lawyer, was able to secure a remand.
Recognize that your credibility and believability is a matter of judgment by the judge. In the first hearing, the judge was obviously so offended by both the attorney and the claimant that he discounted everything that the claimant said.
The point here is that you want to make the judge’s life as easy as possible and not do anything that would distract him from the medical record. When I appear before the anti-smoking judge, I make sure to ask my client about his/her efforts to quit smoking and to elicit testimony from my client that establishes impairments that exist independently from the smoking.
I also show up in person. I can understand how a judge might be offended if an attorney does not appear in person and shifts the responsibility for managing the claimant to the ODAR personnel. In this case, my client is a person who asks a lot of questions and I would not be surprised if she appeared uncomfortable at the first hearing.
Fortunately my client will now get the appropriate result, but it is happening 2 years later than it should have.
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