As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?
This question concerns itself with your capacity to perform work or work-like activities. Other factors like the job prospects in your town, your transportation issues, etc. are not relevant. As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?
Far too often, disability claimants hurt their chances greatly by giving the “wrong” answer to this ultimate question. In a future post I’ll print out some examples of “good” answers to this question but today I want to focus on the wrong way to answer.
My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers. As a claimant you must take the time to understand how the disability process works and what the judge needs to hear. If you get the answer to this “ultimate” question wrong, you will not be approved.
Here are Stan’s Five “Case Killers,” in no particular order:
Top Five Bad Answers to Question: WHY CAN’T YOU WORK?
In no particular order of “badness”, here are the top five”case killing” responses to the Administrative Law Judge Question: “Why can’t you work?”
2. “My long-term disability insurance company told me to file for social security disability”
This can be an easy mistake to make. Again, the ALJ wantsto know why you think you cannot work. Most long-term disability carriers require those that are on claim for long-term disability benefits to file for social security disability, because the insurance company can reduce the monthly benefit they pay in the amount of the social security disability benefit. So it is true that most LTD recepients may file at the suggestion of their insurance company. But this answer makes you look like the insurance company is leading you around by the nose, motivated not by a belief that you are in fact disabled but rather simply going along with the insurance company.
3. “My unemployment insurance ran out”
This is a real case killer, because it makes you look like you are just working the system.
4. “I don’t have a car/way to get to work”
Social security disability benefit eligibility has nothing to do with whether you have reliable transportation, or even if your impairment keeps you from driving. Now, if you have an impairment that means you can’t drive you have to talk about how that impairment would keep you from working once you are at the job. How you get there is irrelevant.
5. “They eliminated my job/they outsourced it to Mexico,” etc.
Unfortunately, the issue is not whether you job is available. The issue is whether you could perform the job, whether it is in fact in existence. A little strange, I know, but….
Here are a couple more that I can add:
6. “My doctor said that I am not able to lift more than 5 lbs. or sit for more than 3 hours”
The judge can read your medical record and what your doctor said. You are the claimant – what do you think and why?
7. “I can’t stand for long periods of time, sit for too long or lift very much. There is no way I could do any kind of work.”
When you testify you must be specific Generalizations like “too long,” “too much” or “not very much” or “I don’t know I have never tried” don’t help. Before the hearing you need to prepare specific answers about how long you can stand, how far you can walk, how much you can lift, etc. Your lawyer can give you a breakdown of these “exertional” activities. Answer questions about exertional activities using pounds, feet, and specific times.
8. “If somebody would give me a job where I could work alone and sitting down, I probably could work”
If you say this, you are basically saying that you can perform a simple, sit-down type of job. At the very least your testimony should be consistent with the notion that there is no full time work you can do.
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 29 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.
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