Recently I tried a disability case that demonstrates the importance of testifying clearly about your activity limitations.  My case involved a gentleman with chronic  back pain.  During our pre-hearing meeting in my office two weeks prior to the hearing, I reviewed with my client the likely questions that would be asked by the judge at the hearing.  Among the questions that we discussed were questions about his capacity for walking, standing and sitting.

My client explained to me that the answer to those questions depended on a number of factors, including the type of activity he was performing and, most importantly, whether he was well rested.  In other words, if he was well rested and had been lying down for two days, then tried to perform an activity requiring a lot of walking, he would have the capacity to walk for up to two hours at a time.  On the other hand, if he tried to perform walking activity two days in a row, his capacity on day two would only be 30 to 45 minutes.

While this type of answer makes sense to me, I don’t think that it worked very well at the actual hearing.  The judge asked the question "how long can you walk?" and my client went into a 10 minute discussion about how he could walk longer if he was rested, and less time if he wasn’t and that he hadn’t really tried to walk and he wasn’t sure exactly what his limits were because he always stopped if he back started hurting, etc., etc.

I think that a better approach would have been to forget about maximum capacity after two days rest and to interpret the question as looking into his capacity on a Thursday or Friday after a full week’s work.  His best answer would have been "I can walk about 45 minutes then I have to stop because of severe back pain. I need to stay off my feet for at least 30 to 45 minutes before I could walk again.  During the course of the day, I could not walk more than 2 hours total and those 2 hours would put me in bed before the end of the day."

At Social Security hearings, judges are trying to decide what capacity you have for work activity.  Answers need to be fit on a form.  Too many "it depends" or "I’m not sure" create confusion and, as a rule, confused minds say "no."

[tags] hearing strategy, walking capacity, social security disability, odar [/tags]