December 22, 2014

How do you convince a judge that you are disabled if you look healthy?

Hi, I am 51 with 3 teens under age 18 at home. In Sept,2002 I was rear ended and had to have 2 cervical operations. I have been in excruitating pain in my neck and upper back at every movement, every bump I go over and every neck movement.

I have numbness in both feet and left hand. When I walk, my left arm and left cheek on my face goes numb.I am going before the law judge in a week and when you look at me, I physically look great. When I sit still and look foward, I am in no pain. I am not sure how to help the judge understand the severity of my pain because when you look at me, I look fine.

Even lifting a 5 lb bag of sugar hurts. I am a nurse and have been since 1974. I have not worked all that time but alot of it. I can no longer be the nurse I always wanted and was not ready to end my career now. How will the judge ever see my side when so many physically visable patients are asking for help.
–Di

Jonathan responds: Di, thanks for your very important question. This issue comes up a lot because many people have the perception that a person who meets the requirements for SSDI disability must somehow “look” disabled.

In my view, your case is won or lost with the medical records and the opinion statements of treating doctors. Social Security regulations specifically bar judges from engaging in “sit and squirm jurisprudence,” and if a judge was sloppy enough to base his decision on his observation that a claimant “did not look disabled” that decision could be reversed on appeal.

As I have stated on many occasions, the secret to winning cases at hearings is to have documentation from your treating physician or physicians that translates your medical problems into specific work limitations. In almost every case, I modify and submit to the doctor a functional capacity evaluation form. This form asks the doctor for his opinion about the claimant’s capacity in performing various physical tasks and about the impact of pain.Notice that I do not ask the doctor if the claimant is “disabled” as “disability” is a legal concept that is decided by the judge. Instead, my goal is to identify as many specific work activity limitations as I can so that when the judge poses a hypothetical question to the vocational expert, there are so many limitations in the hypo that the vocational witness’ response will be “no jobs.”

Realize as well that disability is not just about your inability to return to your past job as a nurse. Instead, you will need to prove that you cannot perform any job, even a simple, unskilled, sit-stand job. Examples that I frequently hear from vocational witnesses include “surveillance system monitor,” “parking lot attendant,” “ticket taker at a movie theatre,” “hand packer,” and “textile inspector.”

In my experience the type of limitations that win cases arise from reliability issues – i.e., if your treating doctor says that you would likely miss a lot of time from work or need to take unscheduled breaks, most vocational witnesses will conclude that there is no competitive work you can do.

Pain is considered a “non-exertional” impairment in that it exists independent of any activity you might perform. In vocational terms chronic and severe pain creates job issues in that you cannot concentrate, maintain a sufficient pace of work, and you would likely miss too many hours or days.

Every lawyer has his/her favorite arguments in this regard and you should speak to your lawyer prior to the hearing to make sure that the two of you are on the same page.
Jonathan

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.