Clients often ask me “is there anything I shouldn’t say at my hearing?” As an attorney this always makes me nervous as we are obligated to be forthright and honest about all aspects of a claim. The judge, having already read your medical records, work history and earnings records, probably already knows more than you think and is acutely aware of any red flags or short comings with your claim. There is no point is discrediting your own testimony by attempting to lie about anything. I doubt many people were seriously contemplating lying or withholding evidence but instead want to know more about some things that can come out wrong or complicate their testimony. I’ll do my best below to try to point out some common mistakes and how to better handle them.
Stick to the questions asked of you
Clients are often, understandably, excited to explain their impairments and why they deserve disability. That enthusiasm is great, but when it’s unfocused it can actually muddle your testimony and even hurt your claim. Many people try to jump right in and start explaining their position or telling their story. You will definitely get a chance to say anything relevant to you claim but a hearing starts slow with basic background information and legal notices and often work history before a judge is really ready to weigh in on your claim.
Once you get into testimony regarding your impairments claimants will sometimes want to talk about how long they’ve been suffering or how unlucky or unfortunate it was that they were hurt and it was not their fault. These are emotional topics and I would hate to sound dismissive of such things but a disability judge really needs to hear about your current level of impairment and why it prevents you from working and anything that complicates that probably does more harm than good. So, while things like how you weren’t at fault or that your condition is genetic or that you’ve had pain for a very long time can be helpful pretext, focus on your current or most recent condition when answering a judges questions. An attorney can help you understand the most relevant time period for your claim and whether much, if any, context is needed to support your diagnosis.
I can do anything
I’ve had clients with physical limitations that were unwilling to admit to being unable to do something. They’d say things like “well I could lift as much as I want it would just hurt a lot.” That’s ok but what the judge is really trying to ascertain is how much you can lift or how much weight is too much so that you’d avoid lifting it in order to avoid serious pain. Think about how much you’d be able to lift at a job before being unable to keep up. Be reasonable about your limits. Being honest with yourself about how your limited is an important first step to explaining it to anyone else.
I can’t do anything
The flip side of the precious problem- if you are alleging mental health impairments only you don’t need to prove you can’t lift any weight. It’s ok to say that you don’t have issues in that area. In fact, it makes judges more suspicious when you start alleging things that are not supported in the record. Not every single question needs to have a completely disabling response. Again, begin by being honest with yourself about your limits.
I was disabled before I quit working
There might be some room for this with part time or accommodated work but generally you’re not trying to prove anything back before you stopped working. You probably are not alleging disability then and a judge would be unable to award benefits for any time period you’re making above SGA earnings regardless. If anything, it just sounds like your conditions allowed you to work for a time. It would be more helpful to focus on why they caused that job to end or why you wouldn’t be able to return to such work.
I never did that
If, in fact, you never did something certainly don’t just lie and say you did. Generally, however, if a judge is asking you about a trip or a hobby or a job it is based on something in your records that they would like some context or explanation of it. It does not mean you were never supposed to do those things, the judge is just evaluating the extent of your impairment and would like some help reconciling different pieces of evidence. Instead, you can say things like ‘I did try to work but it only lasted a short period before my conditions did not allow me to continue.’ Or that you do like to attend church but rarely get there anymore. Lot of people seem to identify as fishermen or sports enthusiasts, crafters or artists even after they are disabled and no longer able to engage in such activities the same as before.
Yep, yep, yep
Often times judge will ask a list of questions that sounds something like- ‘are you able to dress yourself? Are you able make your bed? Shower? Do dishes and laundry? Most people have to do all such activities in some degree, but simply saying you do them all can often sound like an overestimation of your conditions. Instead it can be more helpful to provide some context. Saying I can was dishes but often need a break if it’s a whole meal is a more helpful answer. Or perhaps you can do laundry but frequently ask for help because stairs are hard. Or that you can get washed and dressed on your own but need remainders to do so. Direct answers are best, but so direct that answers lack proper context can also be misleading.
Ultimately having a good attorney on your claim will help with any of these or other issues that may arise in your testimony. An attorney will prepare you with what to say or issues that may come up before your hearing. During your hearing your attorney will also ask follow up questions to provide proper context or further elucidation on any answers that were incomplete or may have left a judge with the wrong impression.