Your social security disability lawyer’s job in the administrative law judge hearing is to present the “theory of the case “. One way I have found to express this is to encourage my clients to develop an “elevator speech“. This is a cogent, compelling and concise statement of why the administrative law judge should approve your case. Obviously this includes reference to the specific regulations that support your claim.
But your disability attorney’s “theory of the case” is supported by your testimony about the limitations that keep you from working. Your case is built on your answer to a simple question:
Why can’t you work?
In other words, what are the limitations that keep you from working?
Unfortunately, not all limitations are of equal import, and often the limitations that disability claimants are important in winning their disability are in fact – not. To prepare for your administrative law judge hearing you need to “filter out” those limitations that are not helpful to your claim, leaving you with the limitations that are key to success. Here’s my quick “down and dirty” flow chart for how to do just that:
|REASON WHY||EXAMPLES OF LIMITATIONS LIKELY TO BE "FILTERED OUT"|
|Does the limitation affect:|
Your ability to do "work-related activities" OR
Your ability to "sustain and maintain" work
|Your limitation must erode or eliminate your ability to do work activities. These include the basics of sitting, standing, walking, lifting, carrying, reaching. Limitations such as chronic absenteeism due to your illness do not impact the ability to do work activities, but do impact the ability to "sustain and maintain" work: no one with chronic and excessive absences will keep their job for long.||You are young with clerical work background but cannot drive due to epilepsy. Driving is not a part of your prior clerical work. Epilepsy may adversely affect your ability to do your job, but driving is not a part of clerical work.|
|Is the limitation - both its existence and its nature and severity - an expected limitation of a diagnosed medical condition?||Your limitation has to be the result of your diagnosed medical condition. And perhaps more importantly, the extent of your limitation (the frequency, intensity, and duration) must be a reasonable result of your diagnosed condition.||Pain that is unexplained (i.e., there is no diagnosis or reason for the pain), or pain that is out of proportion to the medical findings. |
|Does objective medical evidence support the nature, severity and duration of your limitation?||Diagnostic testing - radiographic studies such as X-Rays, or laboratory findings - must be consistent with just "how bad" you say your limitation is.||Constant low back and leg pain rated 10 on a scale of 1-10 where the lumbar MRI shows only "mild" spondylolysis.|
|Do your medical records reflect that this limitation is a big problem for you?||Social security will want to see support for your limitations in the medical records. It would not make sense, for example, that there is no indication you have told your doctor about the significant limitations that keep you from working.||Complaints that you must lay down everyday for 1-2 hours to relieve back pain, but the pain management doctor records you have never complained of this problem to your doctors.|
|Are you doing all you can to reduce the impact of this limitation?||Nearly all medical conditions can be treated to at least some extent. Even if you are frustrated with medical treatment, your failure to get medical care will cause social security to wonder if you would be able to work if you just followed medical advice.||Complaints if unremitting low back pain but you refuse surgery and quit physical therapy "because it is not doing any good".|