Some observations, comments, and commentary about handling social security disability claims...

With few exceptions, most disability claims come down to a matter of whether the judge believes your testimony and other evidence of your complaints and symptoms. While we are careful to make sure that all of your relevant medical records are in evidence, those medical records rarely address how your impairments affect your ability to work. Most medical records are somewhat haphazard; some are unreadable. Because of this, we try to obtain "medical source statements" from your treating physicians that address how your impairments affect your ability to perform work-related activities. Regrettably, many physicians are either too busy to fill out these questionnaires or refuse to due so "on principle" or want large fees to do so. Regardless of whether we have the cooperation of your physicians in completing medical source statements, those statements almost always are based on what you told your physicians about your complaints. If the judge doesn't believe that you have been truthful about your complaints or that you exaggerate, the judge is not likely to put much stock in your physician's opinions.

What judges look for in assessing your credibility is first and foremost whether there is medical evidence of the existence of medical conditions that could produce the complaints and symptoms you allege. If you claim to have a severe memory loss because of a fractured ankle, well, I am sorry, but there is just no way in medical science to connect the two. Without an established medical diagnosis that could produce a severe memory loss, the judge cannot consider your allegations of memory loss. Once you have presented evidence of a medically determinable impairment or condition that could produce the complaints and symptoms you allege, the judge must then consider the following:

your daily activities;
the location, duration, frequency, and intensity of your pain or other symptoms;
factors that precipitate and aggravate the symptoms;
the type, dosage, effectiveness, and side effects of any medication you take to alleviate pain or other symptoms;
treatment, other than medication, you receive for relief of pain or other symptoms;
any measures other than treatment you use to relieve pain or other symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
any other factors concerning your functional limitations and restrictions due to pain or other symptoms.

So, after considering these issues, how does the judge decide whether to believe you? First, the judge will consider what you reported to your physicians about your complaints. Most physicians' notes contain a discussion of your "chief complaint". The judge will have a difficult time believing you if the complaints you reported to your physician don't match up with your testimony. It is not helpful when your physician's office note reflects that you reported that you never felt better after his last treatment, but you testified at your hearing that you derived no benefit from that treatment.

Judges want to know about the efforts you have made to continue working despite your impairments. You need to be prepared to discuss accommodations that were made for you by employers and efforts to perform restricted duty or part-time work. Simply stated, judges want to believe that you have done everything reasonably possible to continue work so that they can feel comfortable in concluding that you are disabled. Some claimants mistakenly believe that any attempt to return to work after they have filed their claim will hurt their claim. Actually, the opposite is true. Some of the most persuasive evidence you can bring forward are what we call "unsuccessful work attempts" either before or after you filed your claim. Likewise, you should be aware that you can apply for and receive disability benefits while earning money as long as the amount earned is below the yearly figure for "substantial gainful activity" (SGA). In 2008 that figure is $940 per month.

Judges also look at your earnings record. A claimant who has a consistent record of substantial earnings is more likely to be believed than someone with a spotty earnings record unless that spotty record can be directly tied to physical or mental impairments. Judges understand that you would not likely give up a well-paying job for a substantially reduced disability benefit unless something was wrong with you.

You are going to be asked about any history of drug or alcohol abuse. That's because in 1996 Congress decided that too many persons were being awarded disability benefits because they were strung out on drugs or alcohol. The specter of persons using their disability benefits to continue their addiction did not sit well with Congress; hence, Congress amended the Social Security Act to provide that disability benefits cannot be awarded where drug or alcohol abuse is a "material and contributing factor" in the claimant's disability. This does not necessarily mean that you cannot obtain disability benefits if you are continuing your substance abuse. For example, I successfully represented an outright alcoholic who continued to drink; however, he was disabled because of massive accidental injuries to his back and legs that would have rendered him disabled regardless of how much he drank. Likewise, if you stopped drinking and are now left with the end-stage of cirrhosis of the liver, you are likely to qualify for benefits. You can also be assured that if your impairment is mental and you are continuing to abuse drugs or alcohol, it will usually be very easy to establish that drug or alcohol abuse is a material, contributing factor in your ongoing mental illness. Do I also need to point out that the judge may not be disposed to believe your complaints with a current history of drug or alcohol abuse?

Do you need to bring witnesses to your hearing to corroborate your testimony? Well, it depends. Please understand that judges schedule hearings about an hour apart. In many hearings there will be a vocational expert present to answer questions the judge may have about your work and residual functional capacities. The time available is short! If your impairments are essentially physical impairments and you have complaints of pain, fatigue, nausea, etc., it is fair to say that if the judge doesn't believe your testimony, he or she is not likely to believe your mother, brother, wife, or next door neighbor. Judges simply don't have the time available to listen to the same testimony over and over from different witnesses. On the other hand, where the impairments are mental or we are dealing with a child's disability claim, it is likely that the claimant cannot appreciate how his or her mental problems affect their behavior or may be unable to discuss these issues rationally. So, yes, it is important in those cases to have others present such testimony. Before leaving this issue, it is important to understand that the non-adversarial character of disability hearings does not require the presentation of testimony from a witness at the hearing. In many cases we have presented deposition testimony of doctors, employers, or family members for the judge's consideration. In other cases we have presented a sworn statement of similar witnesses for consideration.

Lastly, please understand that at present we have 15 judges in the Tampa Office of Disability Adjudication and Review. Their professional life consists of listening all day long to people complain about what they cannot do. After a period of time they develop a sixth sense of who's "gilding the lily" and who's "telling it like it is". That said, it must be acknowledged that these judges are not some super race of mankind; each has his or her own predilections, orientations, demeanors, and frames of reference. Yes, some are more easily prone to award benefits than others, and, no, neither you nor I get to select which judge is assigned to your case. Should you lose, we are prepared to exhaust your appeals if warranted.