By: Binder & Binder
Share This Post
How Valuable is My Testimony?
There is an old joke in the real estate world that goes “how do you evaluate property?” The answer is, “There are three things that matter: Location, location, location.” In Social Security Disability, there are three things that matter: Medicals, medicals, medicals.
“Medicals” is a short word that covers all medical evidence: medical opinions, medical testing, medical records. Medicals determine the strength of your case, particularly if your doctor gives a medical opinion as explaining what is the medical issue, how it was diagnosed and treated and how does it affect your ability to work. Such a thoughtful opinion counts the most. Medical testing is terrific evidence if it is consistent with your symptoms that you describe to your doctor and consistent with what the doctor has done to treat you.
But having medical testing alone does not always mean you have strong proof though usually it does. There was a famous study many years ago that noted perhaps 25 percent of the population had a herniated disc in their back but didn’t know it. These herniations were what the doctors call “asymptomatic.” So having merely a positive test is not always enough though it always helps. The testing must correlate with your symptoms and with what the treatment. If you have a herniated disc in your lower back but the doctor is only treating you for headaches, the relationship between the two is nebulous at best.
Your testimony is similar. No one ever says the strongest evidence is your testimony. If your testimony as to your symptoms is similar to what you told the doctor and what the doctor is treating you for, that counts some. It doesn’t outweigh however the opinion by the doctors. They are the experts and they count more always.
In general, negative testimony, that is testimony that undercuts your doctors has more impact than testimony that is positive and confirms what your doctor says. If an Administrative Law Judge is looking to turn you down, he will want to use your own testimony to do so. So when a claimant testifies he didn’t quit because of his impairment but he quit because he didn’t like working with the boss, that will often be cited in the decision just as a way of making it seem that the disability is not significant. But the mere fact that after an accident you were never able to return to work is rarely mentioned. That occurrence is presumed and not particularly worthy of noting.
Some clients are very knowledgeable about their condition and very articulate. But most of us are not. We defer to the doctor to explain what’s going on and that’s the way it should be. There has never been a hearing where the three great factors in winning a case are claimant’s testimony, claimant’s testimony, claimant’s testimony. That doesn’t happen.
Where your testimony can be helpful is in explaining your previous jobs. I see applications where a claimant will fill out the form asking what he did and the answer will be “worked for the phone company.” That is not very useful. Was the person a receptionist at the downtown headquarters or a worker who climbed poles to install wiring? Was the job one that was highly skilled or relatively unskilled work? Was it a stressful job or one that did not have a great deal of stress? Those areas are important areas to explain to an Administrative Law Judge so he can understand what your job really was like.
Administrative Law Judges vary a good deal. Some will generally believe claimants. They might tell us after a hearing where the medical facts are close, that “I believed the gentleman or the lady and therefore I awarded benefits.” I know one judge who told me that he believed the claimant if he had a good work history. He would say that if someone worked for 20 years in one type of work or worked for one employer and then couldn’t do the job anymore, he could never understand why anyone would disbelieve them. He said people who work full time for decades are hardworking people and should be believed; “people who work for 20 years in a job are workers. They would continue to work if they could.” I always found that to be a very excellent way of looking at testimony.
Nowadays, young workers quit their jobs so often that perhaps it is less valuable than it used to be where people would keep jobs for long periods of time.
But many Administrative Law Judges never believe claimants and the hearing is an attempt to provide reasons for discrediting their testimony. These hearings are often unpleasant and can border on offensive. An Administrative Law Judge is supposed to be impartial, not a lawyer hired to deny a claimant. With this type of Administrative Law Judge – and there are quite a few of them – we merely try to make sure that you understand what the Administrative Law Judge is really asking and help guide you how to avoid getting upset. Clients who are upset often respond less well to questions and can damage their cases. But again testimony by a claimant is rarely crucial. The medical proof, particularly a thoughtful explanation by a treating doctor counts much more.
So to answer the question, “How valuable is my testimony?” I would say not very much. Five percent perhaps where the doctors are 95 percent. That seems fair to me. I’d rather have an inarticulate client with a well written, thoughtful, intelligent report from their doctor than a very articulate client with a doctor’s vague and unhelpful report.Free SSD Evaluation