TESTIFYING AT YOUR HEARING
Questions are going to be asked of you at the hearing about your:
- Work history
- Medical history
- Your estimate of your work limitations (large emphasis)
- Your daily activities (large emphasis)
Work and Educational History
For work history, you will be asked to describe job duties on your last job and on all significant jobs you've had during the past fifteen years. The judge will want to know how much weight you had to lift on each job and about how much time during the workday that you spent sitting, standing and walking on each job. And he'll be interested in difficulties you had performing past jobs because of your health and why you left each former job, especially your last job.
The judge will also ask about job skills. If you have had semi-skilled or skilled work, it is important that you describe your skills accurately. Remember, though, this hearing is not like a job interview in which a person often has a tendency to try to puff up his job skills. Guard against any such tendency.
One test for determining the degree of skill involved in a job is how long it takes to learn to do that job. Be prepared to estimate how long it would take for an average person to learn to do your past job.
For education, you'll be asked the highest grade you completed in school, whether you had any training in the military, whether you have had any formal vocational training or on-the-job training.
There usually are few problems in explaining work and educational history. If you have difficulty explaining why you can't now perform one of the jobs that you have done in the past 15 years, you'll want to go over this with your lawyer before your hearing. If you have recently completed some schooling which might qualify you for a skilled job, be sure your lawyer knows all about this schooling.
Sometimes there are no questions whatsoever about your medical history. The judge will have your medical records from doctors, hospitals and others who have treated you and may let the medical records speak for themselves. It is your lawyer's job to see to it that all of the medical records the judge needs to see are in the hearing exhibit file and, when necessary, that there are letters from your doctors explaining your medical condition and their opinions about your limitations.
The judge may ask a few general questions about your medical history. He may want to know how often you see your doctor, what sort of treatment your doctor provides, what medications you are taking, how often you take them and whether there are any side effects. You may be asked to describe the symptoms and treatment of your medical condition since it began, what doctors you have seen, where and when you were hospitalized, and so forth.
But since the judge has records from your doctors you will not be expected to be able to explain technical medical things to the judge. Unless you are asked, it's better not to try to explain what your doctors have told you or what your friends have told you or what you have read about your medical problem unless you have first cleared it with your lawyer. However, if the judge asks you what your doctor has told you about your condition or your limitations, do your very best to quote your doctor as accurately as possible.
Symptoms are how you feel. No one knows how you feel better than you. You know where you hurt, and when you hurt. You know when you get short of breath or dizzy or fatigued. So it's up to you to describe those symptoms to the judge in as much detail and as vividly as possible. This is very important since it's your symptoms that keep you from working. You're not disabled because your condition has a particular label like arthritis or coronary artery disease or emphysema. You cannot work because of how you feel.
So if the judge says to you, "Why can't you work?" Don't say, "It's because I have arthritis," etc. Lots of people who can and do work have the same impairment. So telling the judge the name of your health problem really tells him nothing. What the judge needs to know is the severity of your pain and other symptoms.
Be specific when you describe your symptoms. Don't just say, "It hurts." Describe what your symptoms feel like, the same way you have probably described your symptoms to members of your family. Describe the nature, intensity, and location of pain, whether it travels to different parts of your body, how often you have pain, and how long it lasts. Explain if you feel different from day to day. Explain what starts up your pain or other symptoms, what makes them worse and what helps relieve them.
Describe your symptoms to the judge the very best you can. Be precise and truthful. Don't exaggerate, but don't minimize your symptoms either.
If you exaggerate your symptoms in your testimony, if you testify about constant excruciating pain but the medical records don't back up what you say, the judge will not believe you. He is also going to wonder how you made it to the hearing if your pain is so bad. So be careful when you use words such as "extreme" or "excruciating" to describe pain; and don't say that you "always" or "constantly" hurt or that you "never" get any relief from pain if what you mean is something less.
On the other hand, if you minimize your symptoms by saying they're not so bad, and a lot of people do, the judge is not going to find you disabled because you will convince him that you have few limitations. This is not the time to be brave.
Do not minimize or exaggerate. Try to describe your symptoms exactly like they are.
Estimate How Often You Have Pain or Other Symptoms
If your symptoms come and go, be prepared to explain how often this happens. Some people don't give enough information, especially when the frequency of symptoms varies a lot. It is never a good answer to say that something happens "sometimes." The judge could conclude that "sometimes" means that your symptoms occur only a few times per year - which is not enough to be disabling. When the frequency of symptoms varies a lot, a lot of explanation and examples are necessary. For example, tell how often symptoms occur in a usual week. If you have weeks with no symptoms, estimate how many weeks out of a year are like that. The more information you give about how often you have symptoms, the better understanding the judge will have about why your symptoms keep you from working.
Estimate How Long Your Pain or Other Symptoms Last
For symptoms that come and go, be prepared to explain how long they last. Try to explain this without using the word "sometimes." Use the word "usually," then estimate how often the symptoms last longer and how often the symptoms are shorter.
Estimate the Intensity of Your Symptoms
You may be asked if your pain and other symptoms vary in intensity. If so, do your best to describe how your pain and other symptoms vary in intensity during a usual day or over a usual week. Often it is best to use the 1 to 10 scale sometimes used by therapists and doctors. On this scale 1 is essentially no pain and 10 is the worst pain you've ever had. Be sure you understand this scale and use it correctly without exaggerating. Think about the worst pain you ever had. Did it cause you to go to the emergency room? Did you lie in your bed writhing in pain, finding it difficult to get up even to go to the bathroom? Did it cause you to roll up into a fetal position? These are the images that the judge will have about what it means to have pain at a 10 level. Some people with disability claims have pain that gets to this level once in a while. Most do not. People who testify that their pain is frequently at the 10 level do not understand the scale. Most judges will conclude that someone who testifies that his or her pain is at a 10 level during a hearing is not to be believed -- because judges think there is no way a person could be at a hearing with pain that bad.
Estimate of Limitations
The judge will ask you how far you can walk, how much you can lift, how long you can stand, how long you can sit, etc. You must give the judge a genuine estimate of what you can do. So it is important to think about these things before your hearing.
If a friend asks you how far you can walk, you probably start thinking of places you have walked recently, how you felt when you got there, whether you had to stop and rest along the way, and so forth. You are likely to answer his question by giving one or more examples of places you have walked recently. If the judge asks this question, answer it the same way. Talk to the judge the same way that you would talk to an old friend.
A Social Security hearing is not a court hearing. If you are familiar with court hearings or have watched lawyer shows on television, wipe such things from your mind. In court hearings, lawyers are always advising people, "don't volunteer." What lawyers mean, of course, is don't give any examples or details, wait for the lawyer to ask. In Social Security hearings, this rule about not volunteering does not apply and, indeed, if you don't "volunteer" information, you may not be giving the judge as much information as he needs in order to decide your case.
Let's look at some examples. You decide which testimony is best. The person who has been advised by a lawyer not to volunteer in answering a question may answer this way:
|ALJ: How far can you walk?
|Claimant: Two blocks.
|A person who talks to a judge the same way he talks to a friend, as we're advising you to do, will answer the question this way:
|ALJ: How far can you walk?
Claimant: Judge, I can't walk more than about 2 blocks without stopping to rest. Just yesterday, I went to the store which is only about a block and a half from my house. By the time I got there, my back felt like it had a hot spike driven into it. I started limping. All I bought at the store was a loaf of bread. I could barely carry it home. On the way home, I had to stop three times because my back hurt so much. When I got home I sat down in my recliner chair and put my legs up before I even put the bread away.
|Beware: Some Judges want a specific number of feet you can walk as opposed to blocks.
As you can see, the person who talks to the judge as an old friend provides a lot of important information, some good examples and some relevant details.
Also, be aware that there is a built-in ambiguity in a judge's question concerning how long you can stand, how much you can lift, how far you can walk, and so forth. Judges always ask the question just that way: "How long can you stand?" The question should not be interpreted to mean, "How long can you stand before you are in so much pain that you must go home and go to bed?" What the judge needs to know, of course, is how long you can stand in a work situation where you must stand for awhile, are allowed to sit down, and then must stand again.
Many times it is best to answer the question more than one way. You might give the judge an example of overdoing it and having to go lie down. But if you give the judge that example, be sure to fully explain it. Be sure to explain that, for example, when you washed Thanksgiving dinner dishes for an hour, you had to go lie down for a half an hour. Otherwise, it will show up in the judge's decision that you have the capacity to stand for one hour at a time, when your true capacity in a work situation is much less. But also give other examples that demonstrate the work situation: for example, if you are going to stand for a period of time, then sit, then stand again, this second standing time may be much shorter.
The problem that we have with the way these questions are asked is even worse when the question comes to sitting. This sort of exchange happens all the time:
|ALJ: How long can you sit?
|Claimant: Twenty minutes.
|When the judge hears this answer, the judge looks at a clock and writes down that the claimant had been sitting there for forty minutes when he answered that question. Thus, the judge concludes that this claimant is a liar.
|What this claimant meant, of course, is that he could sit for 20 minutes in a work situation, then stand or walk for awhile and return to sitting. In all likelihood, a claimant with a sitting problem, after forcing himself to sit through an hour-long Social Security hearing will go home and lie down for a long time in order to relieve the pain in his back. He answered the question truthfully. He can only sit for about 20 minutes in a work situation. If he forces himself, he can sit longer but then it takes some time to recuperate. It is important to explain all this to the judge so he can understand what you are able to do day in and day out in a work situation.
|Here is an example of a good answer to a question about sitting:
|ALJ: How long can you sit?
Claimant: If I force myself, I can sit here for perhaps a whole hour; but I'll have to go home and lie down and I won't be much good for the rest of the day. When I am trying to do things around the house, like pay bills, I only sit for about 20 minutes at a time and then I get up and walk around for 15 or 20 minutes before I go back to sitting. If I were on a job where I could change positions between sitting and standing or walking, the length of time that I could sit would get shorter as the day wore on. Sitting is really hard on my back. It's better, though, if I can sit in my recliner chair with my legs up. I can sit in that chair for a long time but I find it really hard, for example, to pay bills sitting in that chair. I usually sit at the dining room table when I pay bills.
Another problem comes up when you have good days and bad days. For example, on good days, you might be able to sit or stand or walk for much longer than you can on a bad day. If you have good days and bad days, describe what it's like on a good day and what it's like on a bad day. Be prepared, though, for the judge to ask you for your estimate of how many days out of a month are good days and how many days are bad days. A lot of people answer such questions as, "well, I never counted them." Count them. The judge will need this information.
It is important that you give specific estimates about your problems. For example, if you tell the judge you have a particular problem "occasionally" or "once in a while," without further explanation, the judge won't know if you have the problem once a week or once a year. And there is a big difference.
To give good testimony about your limitations, it is really important for you to know yourself, know your limitations, and neither exaggerate nor minimize them. This is hard to do. You will need to think about it, perhaps discuss your limitations with family members and definitely discuss these limitations with your attorney before the hearing.
There is no way to generally help you prepare to testify if you have only mental limitations, since the issues in such cases are different in many ways from those we have been discussing. It is difficult to make general statements about how to prepare for such cases. If your case involves only mental limitations, you and your lawyer will need to go through these matters before the hearing. For those with mental limitations in combination with physical impairments, it is also necessary to discuss the mental limitations with your lawyer prior to your hearing; but there are a few things that we can say here about mental limitations in combination with physical impairments.
Many people, who have serious physical problems, especially if they have been having pain for a long time, develop emotional problems associated with their physical impairments. This is so common that it is surprising to find someone with a long-term physical problem who doesn't also have some emotional problem. But, many people who suffer physical impairments are afraid to talk about this emotional component of pain for fear they will be viewed as crazy. But having such problems doesn't mean you're crazy. It probably means you're normal.
It is important that you be willing and able to describe any emotional problems because it is often the emotional aspect of pain that interferes the greatest with the ability to work. Common problems include:
- difficulty concentrating;
- a quick temper;
- difficulty getting along with others;
- avoiding other people;
- crying spells, and
If you have some of these problems, you may be asked about your ability to understand, carry out and remember instructions, to make judgments, to respond to supervisors, co-workers and usual work situations and how well you deal with changes in a routine work setting. You may be asked how well you deal with stress which, you must remember, is a very individual thing. Different people find different things stressful. If the judge asks you about how well you deal with stress, as part of your answer be sure to tell the judge what sorts of things you find stressful, especially things at work.
Sometimes claimants have trouble putting their fingers on exactly what it is about work that they find stressful. For this reason we're providing a list of examples of things some people find stressful in work:
- meeting deadlines;
- completing job tasks;
- working with others;
- dealing with the public;
- working quickly;
- trying to work with precision;
- doing complex tasks;
- making decisions;
- working within a schedule;
- dealing with supervisors;
- being criticized by supervisors;
- simply knowing that work is supervised;
- getting to work regularly;
- remaining at work for a full day;
- fear of failure at work.
Sometimes people find routine, repetitive work stressful because of the monotony of routine, no opportunity for learning new things, little latitude for decision-making, lack of collaboration on the job, underutilization of skills, or the lack of meaningfulness of work. Think about whether you find any of these things particularly stressful. If so, discuss them with your lawyer.
Judges always ask about daily activities. They ask how you spend a usual day. They use your description to figure out whether or not your daily activities are consistent with the symptoms and limitations you describe. For example, if you claim to have trouble standing and walking because of severe pain in your legs but you testify that you go out dancing every night, the judge is going to have some reason to doubt your testimony about your symptoms and limitations.
The judge's questioning about your daily activities provides you with a golden opportunity to help your case by giving him a lot of details. You can see how the following non-specific answers prevent the judge from hearing very useful information:
|ALJ: What do you do on a usual day?
|This is not a good answer. Sitting staring at a television set is doing something. Sitting staring out the window is doing something. Sitting staring at a blank wall or at the ceiling is doing something. So describe to the judge what you do - but don't do it this way. Here's another bad example:
|ALJ: What do you do on a usual day?
Claimant: Oh, I do some cleaning, cooking, straightening up the house, sometimes some laundry and going to the store.
This is a truthful answer since this person does all of these things, but it doesn't help his case at all. He failed to mention the fact that he only does cleaning for a few minutes at a time; he cooks only simple meals because he can't stand in the kitchen long enough to do anything more elaborate; he has help doing the laundry; and he never goes to the store alone; he always takes along his 15-year-old son to carry the groceries. In other words, the brief description of the things that he did during the day does not support his disability claim. But, the details about how he goes about doing these things do help his case.
To help the judge live your day with you, run through your usual day hour by hour. Emphasize those things that you do differently now because of your health problems. If you stop and think about it, you'll probably be able to come up with a long list of things you do differently now than you did before you became disabled. These things are important because they show how your disability has affected your life in major and minor ways.
Describe how long you are active doing things and how long you rest afterwards. Tell 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 and what help they provide.
The more specifics that you can provide, the easier it is for the judge to understand your testimony about your symptoms and your limitations.
Some Things Not To Do
- Don't argue your case.Your job is to testify to facts, describe your symptoms, give estimates of your limitations, outline your daily activities, and provide lots of examples of your problems. Leave arguing your case to your lawyer. For example, don't use the line that starts "I worked all my life...." Or don't say, "I know I can't work."
- Don't try to draw conclusions for the judge. Let the judge draw his own conclusions. Don't say things such as, "If I could work, I would be working." Or "I want to work." If you say this, it may cause the judge to think about Stephen Hawking who is in a wheelchair and unable to speak but is the world's leading expert on theoretical physics. There are many exceptional people with extreme disabilities who work; but it is never the issue in a Social Security disability case that there are others who work. It is also not relevant that there may be people less disabled than you who receive disability benefits.
Don't compare yourself to others. Popular lines are:
- "I know a guy who has nothing wrong with him but he gets disability benefits."
- "I know people less disabled than me who get disability benefits.
- "If I were an alcoholic you'd give me disability benefits."
- None of these comparisons helps your case.
- Don't try to play on the judge's sympathy. It won't help. It might backfire. Judges have heard it all. Your financial situation, the fact that the bank is going to foreclose on your house and so forth are not relevant.
- Don't try to demonstrate what a "good" person you are. Benefits are not awarded to the virtuous. They are awarded to the disabled. Some claimants, perhaps influenced by the rhetoric of politicians, bring up extraneous matters to demonstrate their virtue, thinking that this will influence the judge. Don't do it. This is just like trying to play on the judge's sympathy. It doesn't work. It may backfire.
- Don't engage in dramatics. You are supposed to tell the truth at your hearing. If you are putting on a show for the judge, that is the same thing as not telling the truth. At the same time, however, if you are having a genuine problem at the hearing and you need to stop the hearing for any reason, tell the judge and your lawyer.
Don't give irrelevant testimony. Social Security regulations contain a list of irrelevant areas of testimony - areas that the judge can't and won't consider in deciding your case. This list is in the regulations:
- The fact that you are unable to get work is irrelevant.
- The lack of work in your local area is irrelevant.
- Hiring practices of employers are irrelevant.
- Technological changes in the industry in which you have worked are irrelevant.
- Cyclical economic conditions are irrelevant.
- The fact that there are no job openings is irrelevant.
- The fact that you would not actually be hired for a job is irrelevant.
- The fact that you do not wish to work at a particular job is irrelevant.
Also, it doesn't matter that a particular job doesn't pay well enough to support your family.
There are three areas where there could be potential problems. So if any of these three things apply to your case, be sure to bring them to the attention of your lawyer before the hearing.
- Think back over the fifteen years before you became disabled. Pick out your easiest job. If you have trouble explaining why you can't now do that easiest job, even if that job no longer exists, be sure to discuss this with your lawyer.
- If you got unemployment compensation at any time during the period that you are claiming to be disabled, make sure your lawyer knows about it before the hearing.
- If you have been looking for work during any period that you claim to be disabled, tell your lawyer about it before the hearing.
Things To Do
Here's a list of things to do at your hearing.
- Tell the truth.
- Neither exaggerate nor minimize your symptoms.
- Know your present abilities and limitations.
- Provide relevant details and concrete examples but don't ramble on.