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What Are My Options?: Hearing Options in the Era of COVID

On Behalf of | Dec 15, 2021 | Firm News

Traditionally, the Social Security Administration (SSA) conducted disability hearings in-person. These hearings occurred before one of the approximately 1,500 administrative law judges (ALJs) working out of SSA’s nearly 150 local hearing offices, or Office of Hearings Operations (OHO), spread throughout the nation.  In some instances, a claimant (i.e., an applicant for disability benefits) would appear at a ‘video hearing,’ that is, a hearing at one of the local OHOs, or even a field office, while the ALJ assigned to the claimant’s hearing appeared via closed circuit video from another location.  In very, very rare circumstances a claimant could appear via telephone but for the most part, claimants generally appeared in-person (typically opting for this method rather than the aforementioned video hearing) before an ALJ at a claimant’s local OHO.

However, on March 17, 2020, due to the extraordinary circumstances presented by the COVID-19 Pandemic, SSA closed to the public for all in-person business, be it at the field offices or OHOs.  As a result, beginning in late March/early April 2020, OHOs started offering disability claimants the option of appearing via telephone at their administrative hearing due to the office closures stemming from the COVID-19 Pandemic (and thus, the suspension of in-person disability hearings).  At first, this was a temporary measure instituted by SSA for the month of April 2020, then extended into May 2020, then again into June 2020, then again through the summer of 2020, then again through the end of 2020, and then finally, extended indefinitely. Furthermore, due to the fact that there appeared to be no end-in-sight to SSA’s closure to the public for in-person business, SSA began offering disability claimants the option to appear at their administrative hearings via remote video using Microsoft (MS) Teams in June/July 2021, in addition to appearing via telephone.  Thus, as it stands now, SSA is offering disability claimants the option of appearing via telephone or remote video, using MS Teams, at their disability hearings.

What does this mean for those of you with a disability case pending an administrative hearing before SSA?  What are the differences between a ‘phone’ hearing versus a ‘remote video’ hearing versus an ‘in-person’ hearing?

  • Telephone Hearing – Your administrative hearing will be held via telephone. You will be present on one line, an attorney (if you choose to have legal representation) will be present on another line, the ALJ presiding over your case will be present on another line, and the ALJ’s assistant (the individual providing tech/office support to the ALJ) will be present on another line.  If warranted, the ALJ may order the appearance of other individuals to help assist him/her with adjudicating your claim.  Since SSA disability for adults is a ‘jobs’ based program (i.e., are you able to engage in substantial gainful activity, a.k.a., work, despite your impairment(s)?), the ALJ may rely upon the opinion of a vocational consultant/witness/expert to assist the ALJ in classifying your past work, if any, as well as answering any hypothetical questions regarding whether an individual, based in his/her residual functional capacity assessment, is able to perform any past work, or has transferable skills from any past work to other work, or if he/she is able to perform any other type of work that exists in significant numbers in the national economy.  Furthermore, depending on the complexity of your medical impairment(s), the ALJ may request the presence of a medical consultant/witness/expert to supplement the record in order to clarify the medical issues in your case, as well as answer for the ALJ if your impairment(s), either individually or in combination, meet or equal any of SSA’s listed impairments.  Thus, any vocational consultant/witness/expert and/or medical consultant/witness/expert would also ‘appear’ at your hearing via telephone.
  • Remote Video Hearing using MS Teams – This format is essentially the same as the above Telephone Hearing option but rather than the aforementioned individuals being present and appearing over-the-phone, and everyone being a ‘voice,’ you, your attorney (again, if you choose to have legal representation), and the ALJ would all appear via video conference using MS Teams.  These three (3) individuals would all be able to see and hear one another.  Typically, the ALJ’s assistant is not visible in the MS Teams video format because the assistant’s video feed is turned-off.  In addition, any vocational consultant/witness/expert and/or medical consultant/witness/expert, despite you having a ‘remote video hearing,’ would appear via telephone.  Lastly, please note that MS Teams is similar to Zoom or Google Meet, so if you have used either of those programs, you have essentially used MS Teams.
  • In-Person Hearing – In this format, you, your attorney (again, if you choose to have legal representation), the ALJ, and the ALJ’s assistant would all appear in a room together at a local OHO (or field office, if you are located in a remote location not near a local OHO).  A vocational consultant/witness/expert and/or medical consultant/witness/expert, if the ALJ requests them to appear, may be present in-person or via telephone, depending on their availability.

However, as previously noted, SSA has not been holding in-person hearings since mid-March 2020 and as of now, there is no foreseeable date at which point SSA plans on resuming in-person hearings.  Thus, if you would like to have a disability hearing, as of now, the only two options available to you are a telephonic hearing or remote video hearing using MS Teams.

In our experience, the telephone or MS Teams hearings are pretty much six-of-one and half-adozen-of-the-other. There does not appear to be any benefit of doing one type of hearing versus another, other than the fact that SSA has been doing telephone hearings longer than they have been doing the MS Teams hearings (March/April 2020 versus June/July 2021).  Thus, it is simply your preference as to how you would like to appear before the ALJ at your hearing: telephone or remote video using MS Teams.

Lastly, pursuant to SSA policy, whether you appear via telephone or remote video using MS Teams, you cannot be in the same room as your attorney.  Instead, if you appear either by telephone or remote video using MS Teams, you will be in one location, your attorney (again, if you choose to have legal representation) will be present in another location, the ALJ will be present in another location, and the ALJ’s assistant will be present in another location.

If you have any questions on what course of action is best for you, please consult your attorney.

The information contained herein is for general information purposes only and is not meant for your reliance on, or to form a basis, for any legal, business, or other decisions.  As always, if you have any legal questions, consult an attorney.