Helping Maine and New Hampshire Social Security disability claimants prepare to testify
Most of my Maine and New Hampshire clients applying for Social Security disability benefits will eventually have to testify at a hearing before an administrative judge. But don’t worry. You won’t have to go to the hearing unprepared.
Putting you at ease before your Social Security disability hearing
I will meet with you a day or so before the hearing to discuss your disability and the issues in your social security case and to prepare you to testify. One goal of our preparation meeting is to allay your fears. You will give much better testimony if you are not fearful about the hearing.
Another goal is to prepare you to give relevant, honest testimony, which neither exaggerates nor minimizes your impairments. Your testimony should be filled with anecdotes, details, and examples of your limitations. Your testimony should provide facts, both the positive and the negative, in a straight-forward manner.
During our meeting, I will give you information about the hearing. I will tell you about the hearing room, the judge, and the judge’s assistant who will run the tape recorder. I will describe the tape recorder and the microphones and explain the necessity for audible answers to questions. I will outline the areas of inquiry: your education and training, work experience and work skills, medical condition, treatment history, physical abilities, mental abilities, and daily activities.
The purposes of your testimony
As I will explain during our preparation meeting, you will be attempting to prove two things by your testimony: (1) that you cannot do any of the jobs that you have had in the past 15 years; and (2) that you are not able to do any other jobs which exist in significant numbers.
For the first item, I will ask you to describe the easiest job you’ve had in the past 15 years and explain why you cannot do it now. I will help you refine your explanation by weeding out any reasons the Social Security Administration has determined are irrelevant. For example, “The company went out of business” and “They’d never rehire me with all my medical problems,” are irrelevant to the Social Security Administration.
For the second item, I will explain that you don’t have to be bedridden to be incapable of performing jobs existing in significant numbers. For example, take the case of a 50-year-old claimant with an unskilled heavy work background and without a high school diploma or college degree. In addition to proving that he cannot do his former heavy job, he must also prove that he cannot do a light job, such as standing at a machine in a factory for six hours out of an eight-hour working day, frequently lifting ten pounds, occasionally lifting up to 20 pounds. Even if the judge finds that the claimant is capable of a sit-down job, the judge can still find that, under the Social Security regulations, the claimant is disabled.
The hypothetical nature of disability evaluation
When I meet with you to prepare for the hearing, I will explain that the judge who presides in a Social Security disability hearing is an Administrative Law Judge (ALJ). I will instruct you not to argue your own case during the hearing before the ALJ. Common sense arguments won’t work, because the disability determination is hypothetical. (If, hypothetically, this job is given to you, are you able to perform it?) Understanding the hypothetical nature of a social security disability determination is crucial for those difficult cases of claimants under age 50. In such a case, I will sort through the reasons that, for example, you cannot do a sit-down job and tell you not to bring up the common sense reasons that the Social Security Administration has already deemed irrelevant: “I’m not qualified for a sit-down job.” “I’d never be hired for a job like that.” “There aren’t any jobs like that around here.”
Minimize your “medical” testimony
During our preparation meeting, I will instruct you to keep your “medical” testimony (about things your doctor has told you but which do not appear in the medical records; about your own medical theories; etc.) to a minimum. Such testimony is not usually helpful to the ALJ in understanding medical issues. You should not quote your doctor unless I or the judge specifically ask, “What did your doctor say about this?”
If the ALJ asks, “What keeps you from working?” a good answer is not to state a diagnosis, such as arthritis. Lots of people work despite the fact that they have arthritis. The ALJ may have arthritis. The reason you cannot work is the severity of your symptoms, something which you know better than anyone. Thus, if you are asked that question, the door is open for you to launch into a full description of your symptoms and limitations. (See discussion Fill your testimony with examples and anecdotes, below.)
Neither exaggerate nor minimize testimony about pain or limitations
When one hears “disabling pain” discussed, it sometimes conjures up the image of a claimant rolled into the fetal position, in so much pain that he is unable to get out of bed. Most social security claimants whose cases go to a hearing do not suffer such an extreme degree of pain. Indeed, if a claimant were suffering pain to this degree it would be legitimate for an ALJ to inquire how he was capable of attending the hearing. Therefore, as I will explain during our preparation meeting, it is not necessary for you to be in extreme incapacitating pain to be found disabled.
Try to guard against any tendencies to exaggerate pain testimony. At the same time, however, don’t minimize it. You will be testifying under oath and must tell the truth. If your description of your pain is inconsistent with what is recorded in your medical records, I will need to understand why the reason for the inconsistency.
Your testimony should be about how your pain fits into your disability case. I will ask you to tell me how your pain prevents you from performing substantial gainful activity (inability to sit, stand or walk for prolonged periods; inability to get through an eight-hour day without lying down; good days/bad days/missed work; inability to concentrate or pay attention on a consistent basis; irritability; other pain issues).
Avoid rehearsing and clear-up ambiguities
I will review your testimony generally without rehearsing. I will listen very carefully to what you tell me. I will look for those things in your explanation which need to be addressed in more detail.
You may be sitting in my office for a half hour, even though you estimate that your sitting tolerance is only for 10-15 minutes. This may seem like an inconsistency. However, the discrepancy may be explained by the inherent ambiguity in the question “How long can you sit?” You might be able to force yourself to sit for a period of time in your lawyer’s office knowing that you will soon be able to go home and lie down. In estimating a sitting tolerance of 10-15 minutes, you correctly perceive the question to ask for sitting tolerance in a work-type situation. To avoid any misunderstanding at the hearing, I will encourage you to volunteer that you are estimating your sitting, lifting, standing, etc. tolerance in a work-type situation; or to answer the question by giving an example of overdoing it as well as an estimate of how long you can carry out an activity in a work-like environment.
Fill your testimony with examples and anecdotes
The best way for me to encourage a vivid description and detailed examples in your testimony is to make you feel comfortable using your own words. To encourage natural testimony, I will tell you to psyche yourself up for talking to the ALJ, not the same way you would talk to a regular judge in a courtroom, but rather as if the ALJ were an old friend who wants to be brought up to date about all of the problems you have been having lately.
At the hearing, when you are asked about your daily activities, you are presented with a golden opportunity to describe your limitations in the context of your daily life. Be sure to give enough details. Run through your usual day hour by hour for the judge, providing as much detail as possible, emphasizing those things that you do differently now because of your impairments. Describe how long you are active doing things and how long you rest afterwards. Give details about resting-where you rest, whether it’s sitting or lying down, whether it’s on the couch or the bed or a recliner chair. Tell how long it takes you to do a project now compared to how long it used to take you. Describe all those things that you need help from other people doing-and tell who those others are. Give details and examples right down to the names of the television shows you regularly watch, if that is what you do.
The more specifics you can provide to the ALJ about your daily activities, the more readily the ALJ will understand your testimony about your symptoms and limitations.
One of the most valuable ways I help Maine and New Hampshire Social Security disability applicants is by preparing them for the hearing before the administrative judge.
If you want my help with your Social Security disability hearing or any other aspect of your claim for benefits, and you live in New Hampshire or Maine, provide a brief description of your claim using the form to your right or contact me at:
Law Office of Gordon Gates
Social Security disability lawyer
Toll-Free: (888) 200-4484
New Hampshire: (603) 821-0249
Maine: (207) 284-9999
Fax: (888) 774-0270
New Hampshire office (by appointment)
83 Hanover Street
Manchester, NH 03101
Please send all mail to:
110 Main Street
Saco, Maine 04072