The ALJ Hearing Process: The Importance of Staying On Task

The Social Security disability hearing process before an Administrative Law Judge (ALJ) is meant as an opportunity to hear from you as to why you believe you’re unable to work any job for which you’re reasonably suited by age, education and experience.   Given this, the ALJ is interested in finding out to what extent one remains functional both in and out of the home and, correspondingly, the extent to which one’s various medical conditions might impact one’s ability to sustain certain activities in a work setting.

When preparing our clients for hearing, we explain to them that a Social Security disability hearing is not about what whether one remains unable to do anything, but rather the extent to which one’s ability to function is “dysfunctional.”  With that in mind, it’s about your ability to sustain activities in what is considered a competitive work situation (which is considered to be an 8 hour day, 5 days per week basis).   The ALJ will look to see to what extent you remain capable of undertaking such activities as sitting, standing, walking, lifting, carrying and using your hands for repetitive activities such as gripping and grasping both small and large objects, undertaking fine manipulation with your hands and reaching (including overhead).   It is not about one’s ability to perform tasks when one is feeling up to it, but rather whether one would be capable of performing these on a regular and continuing basis as requested by an employer.  Claimants are expected to be able to stay on task, with reasonable break periods, throughout an 8 hour workday, 5 days/week.  To the extent symptoms interfere with one’s ability to stay on task is important to make clear to the presiding ALJ.

For example, assuming one has difficulties with fatigue as a result of not sleeping well the night before or from the side effects of one’s medications (or, for that matter, as a result of sugar levels being off if you happen to be a brittle diabetic),  this may then  impact one’s ability to wake up at a certain time, get themselves ready to go to work and to then be able to stay awake throughout an 8 hour day so as to be able to focus on, for example, making change in a cashier position.  One may therefore find themselves unable to “stay on task” as a result of one’s issues with fatigue.  Similarly, issues with depression or anxiety can similarly impact one’s ability to maintain their attention and concentration on tasks for periods of time.  Disability claimants suffering from a headache or migraine disorder may similarly find themselves unable to focus and “stay on task” as would be required in a competitive work environment.   Anybody suffering from issues with pain, whether it be from back or neck problems stemming from serious disk issues, nerve pain in one’s hands or feet stemming from the effects of diabetic neuropathy will experience times of the day where focus and concentration are being adversely impacted (which is not to mention one’s ability to undertake the necessary physical tasks).   This in turn would cause an individual to be “off task” for periods of time throughout the day.   This is not to mention the fact that one might find themselves to be out of work entirely for certain days per week or month.

In preparing our claimants for their disability hearing, we discuss how their conditions impact their ability to undertake activities at home which, in turn, might help provide the presiding ALJ with a sense of how they would might fail with the requirements of a work setting.  For example, we find that many of our clients will inform us they no longer enjoy reading as they find that they need to reread passages as they find it difficult to concentrate.  Some of our clients, when asked, will tell us that they are unable to watch a television show without taking breaks given the symptoms they’re experiencing: whether it be the need to take frequent bathroom breaks, they are becoming tired and finding it difficult to concentrate, or simply are having trouble sitting or standing long enough to last through the program.   An explanation  of these problems can help an ALJ picture how they might struggle with maintain their concentration, persistence and/or pace at a potential job.

At the ALJ hearing, a vocational expert will typically testify as to what jobs a claimant has performed in the past and, upon questioning from the ALJ, will be asked to identify what jobs (either past or others in the national economy) they might be able to perform given their physical and mental health limitations (that is to say, based on a hypothetical residual functional capacity provided by the ALJ) .  Assuming the ALJ finds one would have to be off task for, as an example, 20% of the day as a result of pain, fatigue or mental health symptoms (for example, anxiety or depression issues), the vocational expert would ordinarily testify that they would remain disabled from performing not only their past work, but also any other work that exists in the national economy.   Some jobs are considered to allow for more tolerance than others when it comes to being off task: certainly, professional positions might allow for a bit more flexibility than that of manufacturing jobs, which many times have stricter production level requirements.  Thus, in some circumstances, vocational experts do testify that even being off task 10% of the day can impact the successful performance of a job.

As an experienced Maine Social Security lawyer, with offices throughout Maine, Massachusetts and New Hampshire, I can help evaluate your individual case and how best to present your claim at hearing.  Contact the Law Offices of Russell J. Goldsmith at 1-800-773-8622 to ensure you will be properly prepared for hearing should it be necessary to appear before an ALJ.