TBA Law Blog

Posted by: Christy Gibson on Jan 31, 2013


Emma A. Drozdowski, Attorney at Law*

Paul E. Drozdowski, Attorney? at Law**

Pre-Hearing Briefs

A pre-hearing brief provides the opportunity to make your argument to the judge about why your client should be approved under Social Security’s regulations.  Prehearing Briefs, however, are not all created equal. A general statement that the claimant should be approved because they cannot work a full work week is not persuasive.

Who Is Your Audience?

Your audience is the Administrative Law Judge (ALJ) who will hear your client’s Social Security or Supplemental Security Income Disability case and decide whether he or she is disabled. A pre-hearing brief provides the attorney the opportunity to make your argument to the ALJ about why your client should be approved with specific citations to the record and relevant regulations. The pre-hearing brief also allows you to humanize your client. Instead of using “the claimant”, use the claimant’s name. Using “Mr. or Ms. Jones” makes the judge realize that your client is a person and not just another claimant.

Use the Sequential Evaluation.

In order to make a brief “ALJ friendly,” use the 5-step sequential evaluation as a framework for your prehearing brief. This framework allows you the flexibility to discuss any potential issues that arise in a case. You should include a concise statement of the limitations the claimant has and how those limit him/her from performing various job functions. If your client has a good work history, be sure to mention that. Remember, this is a brief so, longer is not necessarily better.

Pre-hearing Briefs Are Not All Created Equal.

A general statement that the ALJ should consider a particular listing is not very persuasive. The same can be said for the argument that the claimant should be approved because they cannot work a full work week. If you make the argument that a listing is met, you should quote the listing and cite the particular evidence of record that supports your listing argument. The same can be said for any argument that a claimant cannot work a full work week. Explain to the ALJ why the individual cannot work a full work week and cite the evidence that supports that argument.  In other words, provide the ALJ with your suggestion for a Residual Functional Capacity (RFC) with citations to specific evidence in the record.

Technical Details.

Be sure to begin with a statement of the technical details of the claim such as type of application(s), application date, date last insured (DLI), and alleged onset date (AOD) or amended onset date. If the claimant has worked since the alleged onset date or if there are earnings showing since the alleged onset date, be sure to explain what the earnings are and why your client has not performed substantial gainful activity (SGA). Be sure to look at the client’s past relevant work (PRW). Has the DDS correctly identified your client’s past relevant work?  If necessary, look at the DOT code and job description.

Address Potential Problems.

            A pre-hearing brief gives you the chance to address potential problem areas in your client’s claim and allows you to direct an ALJ to the regulations that explain how to analyze those problems. For example, if your client has significant Drug and Alcohol (DAA) use, you can use our pre-hearing brief by citing to the POMS and/or regulations to explain to the ALJ why that DAA use is not material to the claim.  Another problem area that arises frequently is a lack of medical treatment.  Your pre-hearing brief allows you to direct the ALJ to citations in the record indicating that your client’s inability to receive more medical treatment is reasonable.  Many issues can arise in a disability claim and a pre-hearing brief allows you to explain to the judge how to approve your client in spite of any weakness in the claim.  Do not forget to deal with those “problem areas”. It helps your credibility as an advocate for your client.


*Emma A. Drozdowski, Attorney at Law, Law Office of Miller & Drozdowski, Social Security Disability Law, 800 S. Gay Street, Suite 2210, Knoxville, TN 37929, (865) 637-0515 – Office, www.lawknox.com

**Paul E. Drozdowski, Attorney at Law, is a member of the TBA Disability Law & Administrative Law sections and is works at Law Office of Paul E. Drozdowski, Suite 110, 205 Powell Place, Brentwood, TN 37027, (615) 312-8211 – Office, pdrozdowski@pauldrozdowskilawoffice.com.