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

Jonathan
February 12, 2007

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]

Hearing report – mental health issues – favorable decision

Jonathan
March 23, 2006
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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.

Numerous medical problems – why haven’t they approved me?

Jonathan
March 20, 2006

I’d like to know why it seems that people who never worked at all can apply and receive SSI benefits and thosethat have worked and applied for SSD are given months and sometimes years of the run around. I have numerous problems. I suffer from the effects of late stage cancer treatments, arm and shoulder trouble that has persisted for years, sarcoidosis, Can’t walk or stand for long periods and have vision trouble. My medical records and doctors reports have all been provided, I have gone to see one of their doctors and now I’m being told that I may need to be sent to another doctor. All these things are detailed in my medical history which is about 10 inches thick (no exaggeration). Does any of this sound as if they are leaning in my favor? What more can they be looking for? I have been waiting for 5 months.
Thanks, Raye

Jonathan Ginsberg responds: Raye, the overriding issue in any Social Security disability case is whether you impairment prevent you from working. Often doctors treating medical problems like the ones you describe are focused more on diagnosis and treatment than on evaluating work capacity.

In my practice I almost always use “functional capacity” checklist forms designed to help treating doctors “translate” medical problems into specific work limitations.

For example, the cancer treatments may leave you fatigued. If your treating doctor describes that fatigue in terms of poor concentration, poor reliability at work, a need to take frequent unscheduled breaks, then SSA has work limitations it can evaluate.

Similarly, your statement that you are unable to walk or stand “for long periods of time” is too vague. Instead, why not a statement like “I cannot walk more than 50 yards without having to stop for breath and I can walk no more than 30 minutes total in a 4 hour period.”

The goal here is to identify specific work activity limitations. The bottom line – you have to speak Social Security’s language if you hope to win. SSA’s language is vocational in nature, not medical. If you see your case in these terms, your chance of success is much greater.

–Jonathan

Diabetic husband has been struggling for years – has hearing in a few weeks

Jonathan
March 13, 2006

my husband has juvielle diabetes, depression, numbness in feet, and he can’t do the same work he used to do he has to see a judge in a couple of weeks. He put off getting a lawyer. He has alot of mood swings and can’t hold any job he’s only been able to hold a job for 8 months or fewer and up to a year in the last 15/20 years. He has stomach problems by digesting his food. What do you think about him winning his case? Does he even have a chance by your opinion? –Angie

Jonathan Ginsberg responds: Angie, thanks for your email and I’m sorry to hear about your husband’s issues. Based on what you write, I think that he has a good chance at getting approved for benefits. Here are a couple of thoughts….

First, you need to find out if he is “insured” for Title II disability. As a rule, he needs to have 20 covered quarters out of the last 40 quarters. As there are 4 quarters in a year, that means he needs to have worked for 5 out of the last 10 years. The way the system works if he has earned around $3,000 in a calendar year, he gets credit for 4 quarters. You can find out if he has enough quarters for Title II disability by filling out a form 7004. It is important to know if he is covered because if he is not, he would only be eligible for SSI. And SSI can be offset by your earnings, assets and other factors.

Assuming he is covered, he needs to apply. That’s easy and free – call 800-772-1213. The next step is to build a winning case. Although he can hire a lawyer at any step in the process, in most cases there is not much a lawyer can do until SSA denies his claim. Some folks even wait until the second denial (reconsideration) before hiring a lawyer. I have written a book about winning at the initial and recon levels – see www.disabilityforms.com. My book and course explain how to fill out the forms using the terms and approach most attractive to Social Security.

My book is designed to help people at the initial and recon stages – if you have to request a hearing, I’d say you are better off with a lawyer. My disability lawyer referral link is here. If you hire a lawyer at this late date, your lawyer may (or may not) want to ask for a continuance to make sure that the file is updated.
The way you win is to find a treating doctor who will support your argument that your husband would not be a reliable worker because of unscheduled absences caused by any physical or mental health limitations. The technical term for this is “residual functional capacity.” In other words, what capacity for work remains after you take into account the limitations caused by his medical problems?

One word of caution – I have found that Social Security tends to see things in black and white. Part time work that generates income can confuse the issue – SSA often concludes that if you can work Job XYZ part time then you could probably work a less demanding Job ABC full time.

And finally, I think that your husband may be better off focusing on one of his conditions as the primary reason he cannot work. I have found that SSA is more receptive to a clear theory of disability based on one major problem than disability based on numerous problems.

–Jonathan

ADHD Child SSI claim

Jonathan
March 8, 2006

Ii just got custody of my nephew from cps and he has been in residential treatment centers in fort worth, we had him tested thru the school system and discovered that he is emotional disturbed and has adhd and boplar disorder2 and also has obsessive defiant disorder we also learned that we had to put him in special education classes because of an issue that he was acting out inappropriately in class(taking his clothes off in front of the other students in the class) The school system suggested that we try to apply for benefits. He is only five years old.
–Felicia

Jonathan Ginsberg responds: Child SSi claims are different than adult disability claims and different rules apply. Generally, to win a child SSi case, you have to show that the child meets a “listing.” Click on the link to view the listing most closely related to ADHD. As you might imagine ADD and ADHD diagnoses are commonly seen in Social Security courtrooms and judges are very concerned that some parents are too quick to label their children as ADHD or ADD. As such it has been my observation that you will need a treatment history and support from a treating psychiatrist or psychologist. You can learn more about the child SSI process by requesting the free report available on the web site for my child SSi disability guide.

–Jonathan

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