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Category Archives for Disability hearings

Can a Claimant’s Testimony at a Hearing Ruin a Case?

Can something I say at my Disabilty hearing cause me to lose my case? My ALJ asked me if my RA had gotten worse since I quit working, I replied no, and he said "so it doesnt get worse with movement?", I replied "no" to that too, but he didnt ask me why I said that and my lawyer told me not to elaborate and to just answer the question.

What I didnt get to say is that it does not have anything that triggers it , if im working hard or sleeping it comes on and nothing stops it, and the pain has always been unbearable! and that is why I dope myself up to the point of being looney! I feel my lawyer should have asked me to explain why I answered as I did, since he told me not to elaborate in the first place!

Now Im worried the ALJ has the wrong impression and hoping he just goes by the medical evidence I presented as it is all in my favor. Did I blow it by keeping my mouth shut?

–Sherry

Jonathan Ginsberg responds:  Sherry, my experience has been that judges rely more on the medical evidence in a claims file and less on the testimony of a claimant. That being said, some judges can take a statement like the one you described and use it as a basis to deny a claim.

In a case of RA (rheumatoid arthritis), I suspect that the medical record will be fairly complete so I would not stress out too much about your "incomplete" answer. You may want to ask your lawyer to send a short post-hearing brief to the judge to clarify what you said.

You did not tell me what questions were posed to the Vocational Expert – if the question only described mild impairments and resulted in an answer from the VE describing a large variety of jobs, then I would be concerned.

At the end of the day strong support from a treating doctor, preferably including functional capacity forms or Listing checklists will carry the most weight for most judges.

Please email me to let me know what happens – I’ll update this blog post when you do.

[tags] ALJ hearing, rheumatoid arthritis, vocational witness testimony, Social Security disability claimant testimony [/tags]

 

 

I’ve Been Waiting Two Years for a Hearing – Is this “Normal?”

jonathan, i have had fibro., chronic severe depression for years withrecent dx. of recent dx of some short term memory loss. i have a lawyer case has been somewhere in greensboro nc courts for two years now. all my problems have gotten worse and i do report in every time i see all all my md i never hear from the lawyer is this normal?
–Nancy

Jonathan Ginsberg responds:  Nancy, thanks for your email.  I hate to use the word "normal," because every lawyer handles his/her cases differently and every Social Security hearing office has different time issues with regard to scheduling hearings.

Here in Atlanta, a two year wait is typical.  I do think that you should be hearing something from your lawyer’s office every few months or so, even if you are hearing from a paralegal to update your medical treatment record.  You don’t say who your lawyer is, and I don’t necessarily need to know.  I can tell you, however, that if your attorney has nothing to report to you because the system is flawed (i.e. it takes years to get a hearing),  you can’t really expect him to call you every month to tell you that he has not heard anything.  Realize that your lawyer probably has 100 to 300 other cases – if he spent all of his time calling clients to say he had nothing to report, he would not get much done!

If you have not done so, call your lawyer’s paralegal to ask for an update.  Try to get the paralegal’s email as well as email is a much more time efficient means of communication.

It sounds as if you have a decent case – best of luck to you.

Hearing report – mental health issues – favorable decision

I tried a case today that was kind of interesting – and the Judge will be issuing a fully favorable decision.  The claimant is a 37 year old woman who has been diagnosed with major depression with psychotic features.

My client had been sexually abused by a family member as a teenager and thereafter began experiencing audio and visual hallucinations (she sees shadows and hears voices).  She has attempted suicide 8 times over the past 10 years.  She has also been hospitalized at psychiatric hospitals five times, including one hospitalization last week.

The claimant’s past work was as a small parts assembler, an inventory control person and as a nurse’s aide. She testified that she would work for a while, but would always feel that her co-workers were “whispering” about her.  She said that a voice in her head would tell her to leave.

The vocational witness testified that if her testimony was deemed credible, that she would not be able to perform any job in the competitive job market because of these distractions and because of the impairment in her concentration.

The medical record in this case was about five inches thick and the judge understood from the outset that this claimant had some significant limitations.  The obvious question in my mind, therefore – why wasn’t the Social Security adjudicator able to approve this case a long time ago.  My client filed for benefits in October, 2002.  Her medical record has been consistent with regard to her mental health issues.  Why is it that she had to wait three and a half years to get a decision?

I also think that what made this case easy for the judge to decide were the numerous work limitations set out in the record.  During our pre-hearing meeting, I practiced with my client to make sure that she described her work issues in terms of minutes and hours and gave specific answers to questions about how often certain distractions occurred.

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