One of the more troubling parts about practicing Social Security disability law involves hearing stories of how my clients suffered horrific abuse. I would estimate that at least 75% of my cases involving mental illness also include a history of abuse. It is no surprise to me that anyone who was abused by a parent or authority figure, or by a person physically stronger would continue to suffer physical and emotional wounds for years to come.
Because a claimant’s history of abuse helps explain current symptoms – depression, social phobia, anxiety, etc. – I think it is necessary to question my client about the abuse he or she experienced during that client’s disability hearing. Obviously this is a difficult and uncomfortable task – I have no desire to dredge up bad memories or to make my client relive a terrifying experience – but I have to bring this information about in testimony so the judge can better understand what my client is going through.
In preparing my clients for testimony about prior abuse, I suggest one of two ways to present this evidence.
If my client feels able to testify verbally, I practice the testimony extensively in my office. I know from experience that most of my clients – both men and women – will become emotional and may not be able to testify. During the hearing, therefore, I often find myself asking leading questions in which I reference our in office conversation. To date, no judge has objected to my asking these leading questions.
I want my client’s testimony to touch on what happened, but I put my main focus on how long the abuse went on, whether the abuser was ever arrested or brought to justice, how the abuse experience changed my client, and current fears and issues that my client faces now.
Recently, for example, I represented a middle aged woman who had been severely physically and sexually abused by her ex-husband. On several occasions he threw her to the ground and at one point tried to kill her by breaking her neck. As a result of this abuse, my client is afraid of men, especially large men. She experiences anger control issues, and experiences flashbacks when she hears loud noises, screams or sees physical confrontations on television. My client also experiences poor sleep patterns and she has not been able to sustain any type of relationship during the past decade, since she divorced her husband. She also testified about constant fear of a future attack now that her ex-husband has been released from prison.
My client did an admirable job explaining what she had gone through, and, with a little prompting from me, we were able to paint a more complete picture of the PTSD and depression that was diagnosed by the consultative psychologist [The psychologist’s report was helpful in identifying work limitations but he did not go into any sort of detail about the nature and extent of the abuse my client suffered.].
In a few situations, I felt that my client was too emotionally fragile to testify so during our pre-hearing meeting, I drafted an affidavit detailing the abuse and how my client has been impacted by it. I will submit this affidavit along with a pre-hearing brief and an explanation that my client has a difficult time talking about her past abusive relationships.
Without exception, all of the judges considering cases where abuse has been alleged have been cooperative and compassionate in their approach to my client and I make every effort to preserve my client’s dignity when talking about these very bad memories.
I will tell you, however, that not every one of these cases was approved. Remember that judges are looking for evidence. Even a claimant who testifies credibly about severe abuse will be expected to seek ongoing counseling and psychological care. I recall one case involving a female soldier who suffered on-going sexual abuse by a commanding officer, some of which happened in a VA facility.
Because of her fear of men and her terrible experiences at the VA she did not seek treatment at a VA facility and could not afford private care. The judge denied the case on the grounds of lack of evidence.
So, if you suffer with physical or mental health problems arising from prior abuse, make sure to discuss with your lawyer how you can most effectively present testimony about what happened, and most importantly practice your testimony and prepare with your lawyer well before your hearing.
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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