Initial Hearing Questions for Claimant

Vocational training, work experience, medical history, and current treatment

by Thomas E. Bush

Excerpted from Social Security Disability Practice

This section is presented in outline/checklist form so that you can use it at a hearing to make sure all of the issues are covered, whether the ALJ questions your client first or you conduct the direct examination of the claimant. Needless to say, not all questions will be relevant to your client’s case nor will the answers to many relevant questions measurably add to your client’s case. You will need to focus your client’s testimony on his individual limitations. Use this section to make sure you don’t forget anything important, not as an outline for testimony to be followed point by point.

Background, Age, Education and Vocational Training

•   Name, address, social security number.

•   Date of birth, age today, age at onset of disability.

•   Highest grade completed in school.

       When did not complete high school:

    •  Did you get a G.E.D.?

       When not fluent in EngIish:

    •  Where were you born?

    •  What language did you grow up speaking?

    •  Where were you educated?

    •  When did you come to the United States?

    •  What language is spoken at your home today?

    •  Who reads the mail at your house?

    •  Are you able to read in another language?

In mental retardation and similar cases:

•   Did you attend regular classes or special education classes?

•   How well did you do in school?

•   If an 8th grade reading, level is average, would you say that you’re at least an average reader?

If less than an average reader:

•   Can you read and understand a newspaper?

•   Can you “read or write a simple message such as instructions or inventory lists”? See 20 C.F.R. §404.1564(a)(1) definition of illiteracy.

If illiterate:

•   Who does your reading for you?

•   How have you handled job applications?

•   How did you get a driver’s license?

•   How have you managed to deal with SSA forms?

•   Can you multiply and divide/add and subtract/make change?

•   Describe any vocational training; was it completed? When?

•   Describe any on-the-job training. When?

•   Describe any training in the military. When?

Work Experience

For work to be “past relevant work” it must have been “done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity.” 20 C.F.R. §404.1565(a) and see also SSR 82-62. Thus, for all work during 15 years prior to date of adjudication or prior to last date insured if that date is earlier [see 20 C.F.R. §404.1565(a)]:

1. Job background information:

    •   Name of employer

    •   Approximate dates of employment

    •   Name of job

    •   Job duties

    •   Full time or part time

    •   Length of employment

    •   Did you do this job long enough to learn the job and develop “the facility needed for average performance”? (SSR 82-62)

    •   Earnings (relevant to SGA issue and in assessing skill level)

    •   Why did you leave this job?

    •   Before you left this job, did your impairment cause you to miss work, do a poor job, change job duties, change hours of work, etc.?

2. Exertional level:

 •   Heaviest weight lifted/carried

           •  How often did you lift/carry this much?

           •  What objects weighed this much?

           •  How far did you carry them?

    •   Average weight lifted/carried

            •  How often?

            •  What objects?

            •  How far?

    •   How much sitting and standing/walking in an eight-hour working day?

    •   Did the nature of this job allow you to sit, stand or walk as you chose?

    •   How much bending? Any crawling, climbing, balancing?

    •   How much manipulative ability was required?

3. Environmental limitations:

    •   Describe work environment: temperature, wetness, humidity, noise, vibration, fumes, odors, dusts, gases, hazards (e.g. machinery, heights).

4. Skill level:

    •   How long did it take to learn to do this job?

    •   Describe machines, tools and equipment used.

    •   Describe any technical knowledge or skill used on this job.

    •   Describe any writing or completing reports.

    •   How much independent judgment was required?

    •   Describe any supervisory responsibilities: how many people? Did you complete work evaluations? Have any hiring/firing responsibilities?

5. Stress level:

Where stress tolerance is an issue:

    •   What was it about this job that you found stressful? e.g., speed, precision, complexity, deadlines, working within a schedule, making decisions, exercising independent judgment, working with other people, dealing with the public (strangers), dealing with supervisors, being criticized by supervisors, simply knowing that work is supervised, monotony of routine, getting to work regularly, remaining at work for a full day?

6. Meeting the claimant’s burden of proof:

    •   Why can’t you do this job now?

Or, if no longer insured for Title II:

•   Why couldn’t you do this job as of [the date last insured]?

Medical History

Medical history is established by the medical records. Most ALJs have read the medical records and taken notes on them for use at the hearing. Thus, detailed testimony about medical history is not necessary in most cases. There is no need to establish through the claimant’s testimony the date of his back surgery when the operative report is a medical exhibit; and it is unnecessary to develop testimony about the extent of the claimant’s suffering at his lowest points such as immediately before or after surgery. Because of the requirement that a claimant be disabled for 12 months, it is the plateaus, not the valleys or peaks, which are most important in a social security disability case.

Often you may want to use the medical history to establish a time frame for the claimant’s testimony about the plateaus. If so, do it as quickly as possible with leading questions. For example:

Q:     You injured your back at work on January 15th, 19___, didn’t you?

Q:     And you never went back to work after that, did you?

Q:     Your condition continued to get worse, you had numerous medical tests which found a ruptured disc, and you had surgery on May 15, 19___, didn’t you?

Q:     During the summer of 19___ you recovered from the immediate aftereffects of surgery, didn’t you?

Q:     And wouldn’t you say that as of September 15th of 19___, the day your doctor told the worker’s compensation insurance carrier that your condition had plateaued, your symptoms then were pretty much the same as they are now?

Caveat: Do not get carried away with leading questions. Do not use them to establish a fact which is controverted. Never use leading questions when asking about symptoms.

The degree to which you go into medical history depends on the nature of your client’s case. Cases in which more development of medical history is useful include those involving virtually every known treatment for pain, unusual impairments, unusual treatment or especially cryptic medical records where testimony from the claimant will educate the ALJ. In cases where the acute phase is unusually long, where the claimant’s medical history involves a series of peaks and valleys with few plateaus, or in any case where better sense can be made from the medical records after hearing the claimant’s description of his ordeal, spend time going through medical history. In such cases use a combination of leading questions (to avoid the claimant fumbling over the medical details which already appear in the record) and encouraging the claimant to provide a full description of his symptoms and response to treatment.

Current Treatment

While, as a rule, testimony about past medical treatment should be kept to a minimum, a claimant’s testimony about current, on-going treatment should be fully developed, and any lack of ongoing treatment should be fully explained. Ask:

•   Names of those treating claimant now

•   Their specialties

•   Length of relationship

•   Frequency of treatment

•   Which condition does this doctor, therapist, etc. treat?

•   What treatment does he provide?

•   How much has this treatment helped?

•   What medication do you take now? How much do you take each time you take it? How often do you take it? Are there any side-effects? How much does it help and for how long?

•   If no regular treatment/medication, why not?

Caveat: Try to avoid building your case with the question: What has your doctor told you about this? Or what has your doctor said your limitations are? Use these questions only as a last resort in cases where you’ve been unable to obtain a medical report from the doctor and then only after careful questioning of your client before the hearing concerning his understanding of what the doctor said, when he said it and the circumstances under which he said it.

Physical Symptoms

In a physical impairment case, your client’s description of his symptoms is the most important part of his hearing testimony. It is the severity of these symptoms, after all, which keep your client from working. If he can give a credible, vivid description of his symptoms, he has taken one giant step toward winning his case. He must be well-prepared. See §292, supra.

As a general rule, when questioning a claimant about his symptoms, keep a low profile. Let the claimant talk. Never ask leading questions about symptoms. Construct your examination concerning symptoms to get your client talking and then interfere as little as possible with his description of his symptoms. Draw your models not so much from the way lawyers examine plaintiffs in personal injury court cases, but rather from the way the best television and radio journalists get people talking.

The way you ask about symptoms differs from client to client and it is done differently by every lawyer, according to the individual lawyer’s personality. Thus, what follows is a checklist to be used to make sure that the claimant has covered everything. It is a rare claimant who will need to be asked so many specific questions. Most claimants will describe their conditions vividly and completely, in a way which addresses most of the symptom issues, if they are well-prepared prior to the hearing.

Pain

Where pain is an issue, you will want to inquire about the factors identified in 20 C.F.R. §404.1529(c)(3):

1.     Pain:

• nature        • location                      • onset

• duration      • frequency                  • radiation

• intensity      • precipitating factors    • aggravating factors                        

2.     Medication:

• type                        • dosage

• effectiveness           • adverse side-effects

3.     Treatment other than medication

4.     Functional restrictions

5.     Daily activities.

Where there are multiple symptoms/ impairments/parts of the body affected, it works best to ask for a list. (Example: Tell us where you have pain in your body. Tell us what medical problems you have.) Then go back and request additional details, exploring each item one at a time.

Description:

1. Tell us about the pain in your [part of body affected].

2. What happened to cause you to have this pain?

3. How long have you had the pain?

4. Has there been any significant period since it started that the pain was in remission?

   •   What caused the period of remission, e.g., medication, surgery, physical therapy, etc.?

   •   How long did the remission last?

5. What does the pain feel like?

6. Is it tender to touch?

7. Does it limit the amount you can bend the affected joint? How much?

8. Is the quality of the pain always the same or is it sometimes different? If so, how and when is it different?

9. Show us where this pain is located. [Attorney then states, for example, “Let the record reflect that the claimant is pointing to his low back at the beltline.”]

10. Is this pain constant or does it come and go?

11. If it comes and goes:

   •   How often does it come?

   •   How long does it last?

   •   How many hours per day/days per month do you have this pain?

   •   What sorts of things bring on this pain?

   •   What relieves it?

12. Do you have muscle spasms?

13. How severe is your pain? If we use a ten-point scale with ten being the most severe pain you’ve ever had, how would you rank the pain you’ve been telling us about?

14. Is it always of the same intensity? If not, how often is it at each intensity?

15. What increases the intensity of your pain?

   •   Is it affected by movement, activity, staying in one position, environmental conditions or stress?

16. Does the pain ever radiate, such as going down one of your legs? If so:

   •   Which leg?

   •   What route does it travel? Be specific.

   •   What does it feel like when it goes down your leg?

   •   How often does this happen?

17. Is there any numbness or pins-and-needles feeling associated with this pain?

18. Are there any other symptoms associated with this pain, such as redness, swelling, heat, stiffness, crepitus (crackling noise heard when joint moves), muscle weakness, muscle atrophy, fatigue, appetite loss, weight loss?

Treatment:

1. How often do you see your doctor?

   •   What does your doctor do for you?

2. How is the pain affected by medication?

   •   Do you have side effects from pain medication such as drowsiness, dizziness, lack of concentration, slow reflexes, nausea?

3. What treatment other than medication have you tried, such as transcutaneous nerve stimulator (TENS unit), physical therapy, massage, “back school” (training in back exercises and mechanics), bio-feedback, hypnosis, psychological therapy, chiropractic manipulation, acupuncture, Hubbard tank, traction, exercises, injections, pain clinic?

   •   How much have these things helped?

4. What home remedies have you tried, such as hot baths, heating pads, ointments?

   •   How much have these things helped?

5. Is the pain helped by limiting your activities, lying down, shifting positions frequently, sitting in a special chair, etc.?

Resulting Restrictions:

•   How has this pain affected your life?

• Do you use assistive devices? (For example, cane, brace, cervical collar, special door handles, gripping devices, bathtub or shower bars, special chair.)

• Are your daily activities affected (including relationship with others, sleep, hobbies, etc.)? See §319, infra.

• Are you irritable, depressed, worried, anxious, have difficulty concentrating, or remembering? See mental symptoms, §316, infra.

• How has the pain affected your capacity for work? See mental and physical residual functional capacity, §§317-318, infra.

Shortness of Breath

1. What brings on shortness of breath?

   •   Cardiac chest pain

   •   Lung congestion

   •   Asthma

   •   Weather chances

   •   Allergies

   •   Speaking

   •   Exertion

   •   Lying down

   •   Hyperventilation

   •   Stress

   •   Panic attacks.

2. Describe how it feels when you are short of breath.

3. How many pillows do you use when you sleep?

4. How many stairs can you climb before you become short of breath and have to stop?

5. How fast do you walk?

6. How far can you walk before you become short of breath and have to stop?

7. Are you bothered by dust, fumes, gases? If so, to what degree do you need to be in a clean environment?

8. How often do you wheeze?

9. How often do you have lung infections?

10. How often do you have acute episodes of breathing problems?

   •   What brings on these acute episodes?

   •   How long does each episode last?

   •   What are your symptoms during acute episodes?

11. How often would you miss work because of your breathing problems?

12. If you were at work, would you need to take unscheduled breaks? If so, do you expect that this would occur daily, weekly, several times per month? Would you need to sit down or recline?

Fatigue

1. When did you begin feeling fatigued?

2. Did fatigue come on gradually or all at once?

3. Describe your fatigue.

4. Is it the same as being weak? physically tired? lacking energy?

5. Is it the same as being drowsy or sleepy?

6. When you are fatigued, how would you describe your level of motivation to do anything?

7. Is your fatigue associated with a lack of patience?

8. What things make your fatigue worse?

   •   Physical activity

   •   Stress

   •   Heat

   •   Depression.

9. Give specific examples of things that worsen your fatigue.

   •   How much physical activity will bring on fatigue?

   •   Give examples of stressful things that you think made your fatigue worse in the past.

   •   How much heat brings on the fatigue?

   •   Will a hot bath make you fatigued?

10. Is fatigue affected by the time of day? What time of day is worse? What time of day is better?

11. What things make your fatigue better?

   •   Rest

   •   Sleep

   •   Positive experiences.

12. How well do you sleep?

13. How long do you need to rest for your fatigue to get better so that you can get up and do something?

Respond appropriately to changes in a routine work setting.

  Thomas E. Bush has devoted his practice to social security disability issues since 1977.  He was elected to NOSSCR’s Board of Directors in 1988, and was President of NOSSCR for the 1997-98 term.  He is the author of Social Security Disability Practice, from which this article is excerpted.