I don't know what percentage of claimants awaiting hearings on their Social Security disability claims are accepting telephone hearings, the only type of hearing available to them as the moment. If the agency is compiling numbers, perhaps some Social Security employee can tell us. Certainly, a lot of claimants are declining telephone hearings.
I can speak to what I'm doing. The most important thing to remember is that it's the client's choice. I've heard that a few attorneys just automatically accept or decline telephone hearings without consulting with their clients. I'm aghast at this. I've heard other attorneys express amazement that any of their colleagues would do this.
However, even though it's the client's choice, attorney opinion matters a lot. Whenever an attorney lays out a choice that a client has to make, whether it's on this issue or any other, most of the time the client asks "What do you think?" They're paying for our expertise so they ought to take our opinions into account.
The advice I'm giving clients depends upon the client's financial situation.
If it's an SSI or concurrent claim or even a Title II only claim where I know that the client has run out of money or soon will, I almost always strongly advise accepting a telephone hearing. Telephone hearings are not ideal but delay is potentially catastrophic for desperately poor claimants. I've had a couple of clients commit suicide. I've had several others who died of overdoses where you couldn't be sure whether the overdose was accidental or intentional. I'm pretty sure that financial stress was a factor in most, if not all, of these tragic situations. I've had too many conversations with clients who were facing imminent homelessness. I've had too many conversations with clients who stayed in abusive relationships for fear of homelessness. I take delay very, very seriously.
There are some situations where I can't recommend a telephone hearing even for poor claimants. If there are communication problems, a telephone hearing may be impractical. Some clients aren't in medical care. I can look at their files and see that they're going to lose if they don't get back in medical care. I tell them this in strong terms and advise that they refuse a telephone hearing at least until they can get back in medical care.
If my client is not in financial distress, my advice is that "it's your choice" but I tell them not to expect an in-person hearing to be scheduled until there's a vaccine for Covid-19. There's no reason to hope that a vaccine will be available until sometime next year. Even if you're not in financial distress, a long wait for a hearing can be difficult. Claimants want it all behind them. Having this hanging over their heads wears them down. I also warn that there's a risk that Social Security will eventually force a telephone hearing on them. If there's no vaccine in sight later this year, I expect that. Many of my colleagues may violently disagree with me but I think that would be a rational choice for the agency to make. I haven't run any numbers but I'd guess that well over half of my clients who aren't in financial distress elect a telephone hearing.
Other attorneys may be advising their clients differently. I can think of four factors that might make others recommend waiting for an in-person hearing.
- First, the attorney may expect that the Covid-19 pandemic will go away soon. In many areas of the country Covid-19 cases are declining. I happen to live in a state where Covid-19 cases are increasing so I can't be optimistic. Even if you're in an area where Covid-19 cases are declining, I don't think you should expect in-person hearings this years. As Social Security leaders remind us, they're running a national program. Can you resume holding hearings in Harrisburg, PA but not in Raleigh, NC? Can you resume holding hearings when the official advice is that individuals who are older or sicker or immunocompromised should stay at home as much as possible? Too many participants in hearings -- and not just claimants -- fall into one of these categories.
- A second factor is a fear that the telephone hearings being held now are just the start of a campaign to end in-person hearings. I am sure there are some at Social Security who might like this idea but I don't think that's likely to happen. It would draw massive opposition and have little support in Congress. In any case, the grand scheme of things isn't an individual claimant's concern. They need to know what's best for them. Also, individual claimants declining telephone hearings don't make telephone hearings go away. Others are accepting.
- Third, many attorneys have concerns about the mechanics of the telephone hearings. At least early on, there was a problem with hearing participants being dropped from the call without warning for no apparent reason. The other participants often had no idea that this has happened for several minutes. There's no way to log back on if you've been dropped. Also, I've found the sound quality on the telephone hearings to be only fair. I don't understand why the sound quality isn't better. It should be digital. Assuming they can hear each other, it's too easy for people talk over each other in these telephone hearings without intending to do so. I've also had several hearings in which the ALJ started to question the Vocational Expert but the claimant tried to answer because he or she thought the question was directed at them. I've seen that happen at in-person hearings but not too often.
- Fourth, and maybe most important, many attorneys believe that their clients' chances of winning may be lower with a telephone hearings than with in-person hearings. That could be but I haven't seen that myself. From what I've heard, I think most other attorneys who have done a few telephone hearings would agree with me on this. I haven't heard of attorneys doing a few telephone hearings and then start advising their clients to refuse them. I'd be interested in seeing some numbers from Social Security on how claimants who have telephone hearings fare.
