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Your Credibility – A Key Factor in Winning Your Claim

In a previous blog post, I set out several discussion points that I raise with my clients in our pre-hearing conferences.  One of those discussion points has to do with “credibility” – are you a believable witness?

While I think that the quality and nature of your medical record functions as the most important factor as to whether your case will be approved, your credibility is almost as important.

When I refer to credibility, I am speaking of whether you come across as truthful and believable.   Credibility is not something you can manufacture – if your medical condition is not serious and you could perform work, you will face a difficult time winning.  However, it is possible for a truthful, legitimately disabled person to lose because he or she did not appear believable in his/her testimony.

Realize that every claimant that a judge meets during the day is asserting that he/she is disabled. Therefore, your demeanor and your testimony must come across as believable in order to be successful at the hearing. Here are some tips on how to come across as a credible witness at a Social Security Disability hearing.

1. Dress Appropriately

Chosen court attire often aids in determining the credibility of the claimant. Wherein State and Federal courts require a minimum of casual dress, Social Security hearings are generally less formal. Although informal, how a claimant dresses should be such that it conveys respect to the Administrative Law Judge (ALJ). Torn blue jeans and tank tops are examples of clothing that should be avoided at a disability hearing. This is not to say that you have to dress formal; donning formal clothing is unnecessary, and in fact, can send a conflicting message to the judge. For example, an applicant wearing high heels although she insists that she cannot walk without pain will definitely make any testimony she gives less credible. A rule of thumb is to dress conservatively but comfortably.

2. Be specific in your answers

An individual’s ability to answer with informative responses to questions posed by a judge will result in the individual’s testimony being credible. For instance, during a hearing, it is common for the ALJ to ask the applicant questions regarding his/her physical ability. Questions like “How far can you walk?”; “How much weight can you carry?”; and “How long can you sit?” are all questions that an applicant can expect to be asked of him/her during a hearing. It is extremely hard for a judge to consider the profound effect of an individual’s impairment if the applicant responds to a judge’s inquiry with “I don’t know.” If an applicant fails to be specific, then the judge will more than likely consider answers of this type not credible.

3. Don’t over-exaggerate your pain

Physical pain is common to most disabilities.  An individual’s disability caseworker as well as any ALJ expects disability applicants to list pain as a chief complaint.  As such, it is common during the hearing for the Judge to inquire as to the level of pain that a claimant experiences on a routine basis.  Again, although a degree of physical pain is expected, stating pain consistently at level 10 is considered an exaggeration and will result in that portion of the individual’s testimony not being considered.  The basis for this decision is that a consistent pain at level 10 would result in a mental deficiency.  It is unlikely that the individual experiencing pain at level ten 24 hours a day, 7 days a week, would be able to be present during a hearing, much less offer supporting and competent testimony.  A rule of thumb for describing pain is to state the pain experienced in percentages.  For example, an individual may experience pain at level five, seventy-five percent of the days, while the other twenty-five percent is at a level 10.  It is also helpful to describe any events that trigger an increase in pain.  For instance, individuals with RSD, a nerve condition, experience an increase in pain during cold weather. Doing this will also help you to come across as being specific.

So, before you attend your Social Security Disability hearing, just remember that credibility is an important element and be thinking of ways to appear credibly. Without credibility, even a deserving claimant’s chance of receiving benefits is compromised.

The WRONG Answers to the Question: “Why Can’t You Work”

As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?

This question concerns itself with your capacity to perform work or work-like activities.  Other factors like the job prospects in your town, your transportation issues, etc. are not relevant.  As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

lose-win

Far too often, disability claimants hurt their chances greatly by giving the “wrong” answer to this ultimate question.   In a future post I’ll print out some examples of “good” answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers.   As a claimant you must take the time to understand how the disability process works and what the judge needs to hear.   If you get the answer to this “ultimate” question wrong, you will not be approved.

Here are Stan’s Five “Case Killers,” in no particular order:

Top Five Bad Answers to Question: WHY CAN’T YOU WORK?

In no particular order of “badness”, here are the top five”case killing” responses to the Administrative Law Judge Question: “Why can’t you work?”

1. “I can’t find a job. No one will hire me with my medical background”
The ALJ wants to know why you think you can’t work. Implicit in this answer is a belief by the claimant that she can work, and that the problem is not being able to get a job. Social Security Disability benefits are intended to protect workers who cannot work due to a mental or physical condition. There are not intended to address the difficulites of finding a job.

2. “My long-term disability insurance company told me to file for social security disability”

This can be an easy mistake to make. Again, the ALJ wantsto know why you think you cannot work. Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company. Continue reading →

Why You Should Hate the Idea of Applying for Disability Beneifts

“I am disabled and cannot work.”   Although this is a very short sentence, it’s implications are quite profound.  For many of my clients the decision to apply for benefits and assert in writing and verbally that they can no longer earn a living is perhaps the most psychologically difficult part of the disability process.

As humans, we are programmed to believe that things will get better.  For many people, the decision to file for disability is a kind of defeat – a recognition that their physical or mental condition probably won’t improve.

In my view, clients who hate the concept of disability are my best clients.  When you walk into that hearing room, you should have the attitude that “I don’t want to be here, and I am only here because I have no other choice.”   Judges pick up on body langauge, verbal and non-verbal cues.  If your judge senses an “attitude of entitlement” your chances for a favorable decision go way down.

Whenever possible, include in your testimony statements reflecting your desire to return to productivity.   Talk about the fulfillment that work brought you.  Discuss the financial hardship that not working has brought upon your family.  Speak about hobbies and activities that you can no longer do because of your medical condition.

Remember – your job at a hearing is to paint a picture – and the picture you want to paint should reflect a person who is a fighter, not a “taker.”

Avoid statements like “no one would hire me,” or “I can’t do anything since I became disabled.”   Your job is to provide the judge with an accurate description of your symptoms, not to make conclusions about your work capacity.   The work capacity determination is the judge’ s job, not yours.

Disability hearings often turn on the claimant’ s credibility – if the judge finds you believeable and a truthful witness, you are most likely headed for a positive result.

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