Can you choose to not to testify at hearing?

You have to prove you qualify for SSDI/SSI. If you choose not to participate in the process you may severely limit your chances of approval. If you choose to attend, you can certainly try and keep your answers concise, of course.

If you want to limit your interaction with the judge, you'll need representation and you'll want to discuss why you'd prefer to limit your testimony as much as possible.

Personally, I can't imagine why you wouldn't want to take full advantage of a new opportunity to prove you should qualify for SSDI, (worst case scenario you can always appeal again) but apparently some people choose to waive their rights and this link explains those scenarios: http://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-45.html

I have representation, this is now 8 years 6 months, 2 remands, 5 hearings, what more can I say or do, I feel like Morgan Freeman at the end of Shawshank Redemption before parole board.

I was almost approved with first application, at the first stage, but the decision ended up getting yanked and was one of a small percentage to be over turned. It took me a long and complicated journey to reach a Fully Favorable decision. In hindsight, had I simply learned what was important to SS by doing my research in the beginning, I wouldn't have wasted so much time.

Your situation is not all that unusual. Approval at this ALJ hearing, or even after another appeal, is entirely possible.

Without reading your file, it is impossible to guess why you're not being approved. If your attorney is not proactive on your behalf, than you need to be. If you haven't read the Blue and Red books yet, that would be a good place to start.

You've written that your ALJ has a high denial rate, so maybe you should consider changing your Alleged Onset Date voluntarily to when you turned either 50 or 55--this would lower the threshold for your approval based on the grid rules. But, whatever you decide, going into the hearing with the attitude that it's a waste of time and being hostile to the ALJ, will not help your case.

My problem is that keep drawing judges with very low approval rates, not very intelligent, because the appeals council keeps sending it back. The judge that sent me on my CE exam which included a IQ and Memory Scale exam has 66% approval rating, so I'm cautiously optimistic. My remand order from appeals council only wants one thing cleared up, their doctors words, one says severe, the other says mild to moderate.

So, this is a new ALJ?

Do you have any documentation that your function has not decreased since your initial application? That will likely be the sticking point, you may now qualify based on the CE exam, but are you entitled to benefits going back to your original Alleged Onset Date?

If you're willing to take less backpay, you might be able to have your attorney negotiate an On the Record decision... Of course there is also the possibility the ALJ will give you a Fully Favorable On the Record decision, but you should have the dates worked out ahead of time if you're willing to "settle" (it's inappropriate terminology in this context but nonetheless, that is what it is).

Dear Rayandnay,

Please do not let the approval rating of the ALJ frighten you. Think of it as just a statistic and nothing more. If you are qualified, the ALJ will approve you. A 66% approval rate means the ALJ APPROVES 66 out of every 100 claims that come before him/her. That does NOT mean that you will automatically fall in the 34% that are denied. There are a lot of people that apply that are NOT qualified and they are the people that fall into the 34 out of 100 that are denied. Never lose hope. (Ignore my name.)

Maybe the next time we hear from you, we will hear that you are number 67 out of the 100 and you raised his approval statistic.

Wishing you the best. Make Binder and Binder give you a copy of your SSDI file. Like Mz MIgraine said, they work FOR YOU, not the other way around. They will get paid if you are approved. They have a financial stake in helping you get approved. Also, the more YOU know about your claim file, the better prepared you will be. That will help level the playing field. If SSDI has more information than you do, that leaves you handicapped, not just disabled.