Effective Social Security disability hearing testimony
We tell Riverside County and San Bernardino County California Social Security disability claimants that the success of their case may depend largely on how good a job their disability attorney does in eliciting critical facts during their disability hearing. The details about how your impairment affects your daily activities are very important. Delving into these details can make the difference between a denial and an award of benefits.
Let’s illustrate with a specific example. Suppose a claimant does not qualify for disability benefits based on the medical evidence alone (i.e., her impairment does not meet or equal a Listing). But considering her age, education, and past experience, she will be disabled under Social Security disability rules if she can prove that she cannot do any more than sedentary work, an easy sit down job.
At her hearing the ALJ asks the claimant about her activities. The claimant testifies that she can wash dishes, do laundry, vacuum and sweep the floor, prepare meals, take walks, go shopping, attend medical appointments, mow and water the lawn, visit relatives, go on family outings, and perform minor household maintenance. At this point, it looks like the claimant might lose the case because she can do too much. ALJs routinely use a claimant’s activities of daily living as the primary basis for finding a claimant is not disabled.
But, in order to be capable of holding even a sedentary job, the claimant must be capable of sustained work on a regular and continuing basis. A regular and continuing basis generally means eight hours a day, five days a week. Therefore, to win the case, the claimant’s disability lawyer must elicit testimony establishing that the claimant cannot sustain any of these activities for a full work week.
Suppose the claimant walks one to one and a half miles twice weekly. She and her disability attorney should never try to hide that fact. But they may be able to truthfully explain why this activity does not prove she can work by exploring the details. Perhaps the walk is prescribed rehabilitative therapy, and she is able to walk only 10 minutes at a time before she must sit to rest; after resting 15 minutes, she can walk another 10 minutes.
Additional testimony might establish things such as the following:
- That what the claimant means when she states she “does the dishes” is that she loads them into an automatic dishwasher; that this takes less than 5 minutes; and she does it twice weekly.
- That the claimant is able to do laundry only by having her spouse carry the laundry basket to the laundry room where the claimant then loads the washing machine and dryer a few pieces of clothing at a time.
- That the claimant can sweep the floor once weekly for five minutes, and then she must lie down for an hour.
- That the claimant can vacuum one small room only once weekly because doing so takes 10 minutes and results in the claimant being bedridden from pain and fatigue afterwards.
- That “preparing meals” is a less than two minute activity of retrieving items from the freezer and placing them in a microwave oven.
- That shopping is done using an electric cart and a spouse or friend who takes the items from the shelves, places them in the shopping cart, and later loads and unloads the grocery bags from the car.
- That the minor household maintenance done consists of such things as changing light bulbs once or twice a year, fixing a leaking faucet, or perhaps even repainting a room—activities that require minimal sustained exertion and that may even aggravate the claimant’s symptoms.
Once the claimant’s disability attorney has elicited the critical facts about the claimant’s ability to sustain activities (whatever they may be), these may show that her activities are well within the limits of what she can do and still be eligible for Social Security disability benefits.
Skillful representation at your Social Security disability hearing is essential. If you are not already represented by a Social Security disability attorney and want our evaluation of your case, give us a brief description of your claim using the form to the right. Or you may contact us at:
Gilbert & Bourke, LLP
Palm Springs Social Security disability attorneys
225 South Civic Drive, Suite 213
Palm Springs, California 92262