With approval rates on the decline at hearing offices throughout the country, disability lawyers and their clients have to find creative and compelling evidence to make their cases stand out.
In my practice I regularly look for evidence beyond medical records and medical source statements. Often times you can find very convincing evidence in the form of employee files, school records, statements from former co-workers and supervisors and claimant maintained pain diaries.
Now, to be sure, judges are most concerned about your medical record and how your medical issues impact your capacity to work. However your doctor’s main concern when keeping medical records tends to focus on medical issues alone – rarely will medical records contain the specific vocational capacity observations or opinions that judges rely upon.
We can ask your doctor complete a functional capacity evaluation or narrative report (often at a cost of several hundred dollars) but some doctors do not wish to get involved in disability matters and others don’t feel equipped to make vocational capacity conclusions.
This is where unconventional evidence comes in.
Work records can often tell a story, although you may have to read between the lines. In particular, I look for patterns of absences or incomplete workdays. Often I see situations where my client has used up all his/her personal and medical leave days and must resort to using vacation time. If I see a client using a single vacation day on a Tuesday or Wednesday, it is not likely that my client is at the beach that day.
Often employee files contain performance reviews or letters from my client requesting personal days. My experience has been that judges find these statements credible because they were not made in anticipation of a disability application.
I can also read between the lines when I see a client who has a long and consistent work history with one or perhaps two employers, but within the last three of four years prior to stopping work, tried numerous jobs, often at a reduced skill level, and without much success. This says to me that my client has been losing work capacity over an extended period of time but has been fighting to remain employed. Judges tend to find this type of person credible.
School records can also serve a purpose in disability claims, even if the claimant is in his/her late 40’s early 50’s. If my client has a diagnosed learning problem early on, that client may be less adaptable to work outside his/her industry. Transferrable skills are an important consideration to vocational witnesses and I can point to a diagnoses of dyslexia or poor reading comprehension to argue that my client’s work skills may not be easily transferrable.
Finally, I am beginning to make more use of written statements from former co-workers or supervisors. These individuals have observed my client in a work setting and are well positioned to offer opinions about stability in the work force, unscheduled breaks and need for help from others. Obviously, administrative law judges know why these statements are being solicited but if I can present a package of five or more statements from a variety of individuals, judges tend to see the pattern.
Remember your goal as a disability claimant – to paint a picture of a person who is applying for disability as a last resort and only because you cannot – not will not – work any more. You would gladly return to work if your condition improves and you will cooperate fully with your doctor to improve your health so that you can go back to work.