Wednesday, May 17, 2017

#SocialSecurityDisability and the value of the post-hearing brief

Advocacy does not always end after a Social Security Disability hearing. In fact, good advocacy sometimes requires work after the hearing to drive home arguments raised in the hearing brief, in the medical records, and during hearing testimony. Sometimes it is not enough to rest the case with the hearing, and this is when a post-hearing brief can make or break a case.
A post-hearing brief is not required, but it can be a helpful tool. The post-hearing brief is a brief or memo written after the hearing takes place that addresses a specific issue(s). I cannot speak for other attorneys as to why they feel the need to write (or not write) a post-hearing brief, but I write one when I feel there is a lingering issue that is essential to the case.
For example, I recently had a client, who had a history of hernias. These hernias greatly limited his ability to lift, bend, twist, and stoop. Given his age, past work, and education, my theory was the limitations imposed by the hernias precluded his past work and any other work, and this meant he met the definition of disability (cannot perform “substantial gainful activity,” essentially eight hours a day, five days a week).
Client had evidence of one of the hernias, but he had surgery for a double inguinal hernia while in prison in Colorado prior to the agreed upon date of disability. Obtaining medical records from a prison in Colorado is not easy, so we had to ask for additional time to obtain those records. The judge allowed it.
Client testified about the double inguinal hernia at the hearing, but there was no objective medical evidence of it until the prison records came in. I felt we needed evidence of all of the hernias to nail down that issue as an ongoing ailment precluding all work.
Fortunately we did receive the records, and I used a post-hearing brief to argue the new records corroborated the claimant testimony. This argument made the case stronger because it drove home the point made during the testimony and supported it with objective evidence, the medical records.
Lawyers can disagree over the value of post-hearing briefs. Some lawyers do not write briefs at all, which I completely disagree with because zealous advocacy requires it, in my opinion. Some do not write post-hearing briefs; they are content to “just handle the hearing,” and I disagree with this too. Sometimes just going to the hearing is not enough.
Post-hearing briefs are not needed in every case, but they are necessary when a lawyer, trusting his or her instincts and experience, has the nagging feeling that there is a lingering issue in the judge’s mind. If you have that feeling, you need to write the brief. I have never seen an instance when writing a post-hearing brief hurts your client’s case.


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