At your Social Security disability hearing, sincere, straightforward lay testimony from your lay (non-expert) witnesses can well be the deciding factor in your disability claim. It is a very rare disability claim under the Social Security Act that does not need good lay witnesses.
Select a Few Good Witnesses
Your attorney will not want all of your friends and family to testify. Instead, you and your attorney will select a few witnesses who can corroborate and, where possible, add to your testimony.
Screen your witnesses carefully. Eliminate those who have difficulty in expressing themselves, those who do not really want to testify, those who do not have good firsthand knowledge of some aspect of the case, and those who have an exaggerated opinion of themselves and their cleverness.
The most common lay witnesses are your spouse, adult children (sometimes minor children), other relatives, and close friends.
Often such close family members and friends are the only people who can provide helpful testimony. However, sometimes ALJs tend to view such people as less objective than neighbors, former employers or co-workers, and other associates, such as members of the same church or union, or members of hobby groups or professional groups. Therefore, depending on the issues in your case, you may want to look for possible witnesses who are outside of your immediate circle of family and close friends and who, therefore, might be properly characterized as more objective.
Prepare Witnesses But Do Not Rehearse Testimony
Your attorney will interview your witnesses ahead of time. This preliminary interview will be mostly devoted to selecting the best witnesses and to telling them how their testimony can be most effective.
However, your attorney will not rehearse the witnesses. It is almost impossible to rehearse a witness so that testimony does not appear to be rehearsed and consequently entitled to less weight. Rehearsed testimony tends to be trite and stilted, to add unneeded details and, quite often, to overlook valuable information that might be elicited through spontaneous testimony.
Good Testimony Emphasizes Observation and Avoids Conclusions
The best possible testimony from lay witnesses emphasizes their observations and minimizes their conclusions.
For example, testimony from a layman that you suffer from emphysema, grand mal epilepsy, or arachnoiditis is simply a restatement of what someone else has told him and adds little to your case, particularly if other evidence from better sources shows the witness to be in error.
Similarly, it does not help to have lay witnesses testify that you are “disabled,” “totally disabled, or “permanently disabled.” Disability under the Social Security Act is not premised on total disability or permanent disability, and the use of those terms may cloud your presentation, particularly if the entire evidence shows that you are disabled but that the disability is not either total or permanent.
Here are some sample questions that your attorney might ask a lay witness:
- In the last few years, have you observed the claimant having any difficulty walking? Describe what you have observed.
- Expressed in terms of city blocks, how far would be a long way for the claimant to walk without stopping to rest? How long will the claimant need to rest?
Arms and Hands:
- Has the claimant had any difficulty using his or her arms or hands? Describe what you have observed.
- Does the claimant drop things? What things? How often have you observed this?
- Does the claimant appear to be in pain?
- About how much of the time is he or she in pain?
- How do you know the claimant is in pain?
- Does the claimant seem to get worn out easily? What would be a good example (other than walking) of an activity that would wear the claimant out? How long does the claimant then need to rest?
- Is the speed or pace at which the claimant does things any different from the speed or pace at which normal people do things? What is the difference?
- Expressed as a percentage, about what percentage of a normal person’s pace is the claimant’s pace?
- Have you noticed any mental or emotional changes in the claimant? E.g., depression, crying spells, panic attacks, social withdrawal, problems with memory, attention span, or concentration. How often? How long do these problems last?
Sometimes the goal of using lay testimony is to simply corroborate your testimony.
Here is an example of how your attorney might do that:
Q: How often do you have the opportunity to observe the claimant? A: Every day. Q: You have been present throughout the claimant’s testimony, haven’t you? A: Yes. Q: If I were to ask you the same questions that you heard asked of the claimant, would your answers be the same or essentially the same as the answers given by the claimant? A: Yes. Q: From your observations of the claimant, has he testified truthfully here today? A: Yes he has.
Before and After Testimony
Sometimes your attorney will try to get “before” and “after” testimony from lay witnesses. This type of testimony compares your condition from before your disability started to how you function now.
A poor example would be if your wife testified that you have emphysema, are disabled, and that the two of you need the money. This testimony does not emphasize her observations, and merely provides conclusions.
A better approach is if she testifies that she has known you for 28 years and has been married to you for 26 years, that you have always been a hard worker and a good provider, that you are now distraught because you can no longer provide for the family, and that because of your illness she has had to go to work, she has made a start.
It is even better if she then testifies as to your impairments, as observed by her, and indicates how they limit your actions, particularly those having to do with work functions, and verifies your medical regimen. In addition, she can describe in graphic detail that you keep her awake most of the night with your continuous coughing, that you appear to have difficulty lifting a gallon of milk from the refrigerator, that you recently tried to pick up a two-year-old grandchild and dropped him, that you quit smoking last year and use an intermittent positive pressure breathing machine regularly in addition to taking prescribed medication and still have difficulty breathing after walking to the mailbox, 50 feet from the front door.
Examples of Good and Poor Testimony
The following examples show the difference between strong and weak lay testimony. The best examples provide detailed testimony about a specific incident observed by the witness, showing an anecdote that represents many other such incidents.
Weak: [Your name] has epilepsy.
[This is a conclusion, quite likely based on what someone has told the witness who, being a layman, not a doctor, may be surprised before the end of the hearing to learn that the claimant suffers from an organic brain syndrome instead of epilepsy.]
Strong: My son suffers from grand mal epilepsy according to his doctor, and [your name] actions are almost the same as my son’s. He has what appears to be seizures, falls down, bites his tongue, loses consciousness, and loses control of his bladder. When he recovers, after 25 minutes or so, he appears to be in a daze and has trouble speaking. He sleeps for a couple of hours and then appears to be all right. I have seen this happen maybe a dozen times in the last two years.
[These observations will go far to convince the administrative law judge that the claimant suffers from a serious seizure disorder, regardless of the label placed on it.]
Weak: [Your name] has emphysema.
Strong: [Your name] sits in a chair by the window most of the day. The phone is maybe 20 feet away. When his wife is not there and he has to answer the phone when I call, he is gasping for breath after walking even that short distance and has to rest for a minute after saying, “Hello.”
[In this sample testimony the witness has furnished not a conclusion (“emphysema”) but observations from which the administrative law judge can conclude that the claimant has a severe breathing impairment. The exact label to be placed on the impairment (emphysema, bronchitis, asthma, allergy, tuberculosis) is not important at this point, and can be supplied by the administrative law judge after all the evidence is in.]
Weak: My husband is disabled by his pain.
Strong: From what I have seen since my husband came home from the hospital, he appears to be in almost constant pain. He is up and down all night, groans in his sleep, and never appears to be comfortable. His doctor told him to take up to four pain tablets a day, but he never takes less than six. Then he takes a dozen or so aspirin on top of that. He has lost his appetite and 15 pounds. Our social life is nonexistent. He doesn’t drive anymore, or even ride in a car when he doesn’t have to, since he says it hurts too much. I do all the grocery shopping and do the yard work because I’m convinced he hurts too bad to do it. He always did those things before he was hurt. We don’t go to church anymore because he says he can’t sit still that long.
Weak: [Your name] was disabled even while he was working at the plant with me.
Strong: I worked with [your name] for six years. He always did his share of the work until he was hurt. In the last year he was there, I saw him faint twice and took him to the emergency room at the hospital on one occasion. The foreman gave him a lighter job, where he wouldn’t have to lift over five pounds and wouldn’t have to work around moving machinery. All of us pitched in and did part of his work for him. He was absent one or two days a week toward the end. I understand he is retired now on disability.
Weak: [Your name] can’t do her housework.
Strong: [Your name] has always been a meticulous housekeeper. However, during the past year, she has simply let the housework go. I do the laundry for her and the vacuuming. When I visit her, she is usually resting on the couch or in bed. I have seen her try to cook dinner and drop a pan full of hot food. She drops dishes a lot. Once, when I was there, she fainted while she was cooking dinner and fell across the stove.
Weak: Operating a power sewing machine in a clothing factory is hard work. [Your name] can’t do it anymore.
Strong: I sat next to [your name] at the sewing factory and we operated power sewing machines. We were required to sit all day, except for one 30-minute lunch break and two-15 minute coffee breaks. We were required to use both hands and one foot to perform the necessary sewing operations and had to lift and carry up to 20 pounds of finished garments. We had a quota to make. It required good eyesight and good coordination. If she can’t do all those things, she can’t do the work.
Weak: As personnel manager for the XYZ Company, I can say that [your name] is too disabled to do her former work, even though she tried.
Strong: As personnel manager for the XYZ Company, I am familiar with the work [your name] did. She worked as a hand sander, finishing pieces of furniture. This required her to stand for eight hours a day, with the usual breaks, to bend, stoop, work in awkward positions, and to lift up to 30 pounds. She was often absent due to her illness and once we had to shut down the assembly line due to her absence. Our records show that during the last six months she worked for us, she was absent for 31 whole days and went home early on 16 occasions. Her work was satisfactory when she was there, but she was absent so much we had to let her go. Reports from her doctor indicated that she was absent due to treatment for a nervous condition.
Weak: As personnel manager, I think [your name] is entitled to social security disability benefits since he is already drawing disability retirement from our company.
Strong: As personnel manager, I help make disability determinations for persons who file for disability benefits under our company plan. Under our policy, a person is considered disabled if he is unable to do his usual work or comparable work in the plant because of his impairments, for a period of at least six months. Under that definition, [your name] has been found by us to be disabled.
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