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How Poorly Presented Testimony Can Result in an Unfavorable Decision

Although I generally write about successful cases, I think that you can also learn from cases that don’t go so well.  I tried a case recently that turned out to be snakebit.  Just about everything that could have gone wrong did go wrong and this is one of the few cases where a judge announced in open court that he did not find my client believeable or credible at all.

Interestingly, my client does have significant medical problems and a long and solid work history of over 20 years with the same employer.  He is also well educated with a college degree and he earned a very good living in the accounting field.  After he stopped working, he made at least three attempts to return to work but was unable to do so because of significant pain.  He has a clear diagnosis of an orthopedic problem and his treating doctor is recommending multiple joint replacements.  All in all, this gentleman meets the profile of what I would consider to be a viable case.  What, then, went wrong?

Firstly, my client did not present himself as a person who was searching for relief.  He last worked in 2005 and thereafter he had only two visits to an orthopedic surgeon.  Although his doctor stated during both of these visits that surgery was needed, my client did not pursue treatment.  Instead, he stayed at home and sought to control his pain with over the counter medications.

I think that the judge questioned my client’s allegations of pain – there was no attempt to pursue physical therapy, there was no course of pain management, and my client was very vague about what he did during the many months that he was at home.  I believe that the judge saw my client as a man who sat at home watching TV, making no effort to explore options that might improve his condition.

When the question was asked why he had not had his surgery, my client responded that he was “waiting for the result of this hearing” before having surgery.  This was clearly not a good answer.  The implication of this answer is that my client could have had the surgery and pursued a recovery but instead, he decided to wait at home and collect Social Security.  This demonstrates the wrong attitude.

Although I tried to rehabilitate my client by getting him to testify about his fear of surgery and possible complications, the judge remained focused on my client’s linkage of his disability hearing to his surgical options.  Social Security judges cannot hold it against a claimant for refusing to undergo invasive surgery but a judge can hold it against a claimant whose decision not to pursue surgery was motivated by a desire to collect from SSA.

My client tried to raise the issue of money – that surgery was expensive, but the judge shot that down by pointing out that my client had very good insurance coverage through his wife and that his out of pocket cost for surgery was nominal.

The judge did not even raise an issue that I saw in the record – namely that my client smokes 3 packs of cigarettes a day, which means that (1) he spends money on a harmful habit that could otherwise be applied to his out of pocket medical costs; (2) he lowers his chances at a successful surgical outcome as smokers frequently experience longer recovery times and less favorable results; and (3) there was no suggestion in the record that my client is trying to stop smoking.

The judge’s disgust with my client was very evident, and the judge did not even go through the exercise of asking any questions of the vocational witness.  I expect that the decision will be an unfavorable decision based on a finding that my client lacked credibility.

What could my client have done differently?

First and foremost, he should have made some good faith effort to seek relief from his symptoms.  If he was not ready for surgery – and most judges understand if you hold off on major surgery that does not guarantee results – he should have sought pain management treatment or physical therapy to strengthen himself.

My client could have used his condition as a diabetic and as a smoker to improve his chances.  Diabetics often have trouble recovering from surgery and he could have referenced his diabetes as a reason for not wanting surgery.   Had there been evidence that he was trying to stop smoking he could have referenced his difficulty in quitting despite a sincere effort as another reason to delay surgery.

Finally, my client should have presented himself as a person who was applying for disability because he was not able to work despite a true desire to support himself and his family.  Workers do not leave high paying jobs with pensions and benefits to sit at home and collect Social Security.  He should have made it clear that Social Security was his last resort and that he would return to work immediately if his condition warrented.

Alas, even cases with potential do not go as planned.  I think that my client is an example of a person who very well might be unable to work, but he presented himself so unconvincingly that he will not receive benefits.

7 thoughts on “How Poorly Presented Testimony Can Result in an Unfavorable Decision”

  1. What if your family doctor suggest physical therpy and your rumatolagist tells no because hes afraid it will do more harm than good?

  2. I just got unfavorable decision for my SSI Disability and I can hardly walk or use my hands. I have RA and my doctor said I was permanently disabled. So why am I being denied??

  3. I understand and I bet you are angry. I am going to my hearing this Thursday and I was told at my prep. meeting that I am too intelligent and articulate and she won’t even appeal because of that. I can tell you that with my illnesses I am unablt to work at all let alone part time. She said I could be a consultant. Whose side is she on? I am already beaten down and she kicked me the rest of the way. I have RA and Fibromyalgia and heart disease and it all rests in the severity. I would imagine you didn’t have a doctor that thought you were “severe” enough and didn’t write it down if he does think it. I have found that your doctor is your worst enemy with disability. Appeal your hearing!!!

  4. I can kind of understand his position…sometimes like myself you are in so much pain that it is a huge effort to make it to treatments….sometimes I am in so much pain that even thinking of trying to get to the doctors hurts so much more…however I am recieving active treatments. You have to show that you are pro active in your pain until you get to a point of there is nothing else that can be done except surgery. In my case I have so many joints and tendons involved that I have to schedule surgeries one at a time and take which part is needing more attentiion.

  5. I have been fighting disability for two years. I have degenertive disc deisease,depression,anxiety,arthritis,been told in writing cant work by a doctor, gone through two major spine surgeries and still denied. I have a appeal in process, see the same Judge Dec. 8,2009 bases on overturn decision by appeals council. I hope to win my case with the Lawyers I have.Keep in mind STAY AWAY FROM LAWYERS with 800 #s that are not local in your need a local attorney to help you so you can be in good contact. Dont give up IM NOT I hope to win this one…pray for all of us who the system has failed.

  6. You are all going about it wrong.
    If you want to collect, you-
    1- Have to lie
    (I was denied 2x now because I tell the truth and do not put on “a show”.

    2- Best way to get approved, become an alcoholic or drug addict, I do not know of one of those that have waited over 4 months to get a check.

    Your problem (and mine) is that WE were workers and no no longer able to work. Does our j/k-government care? NO!!!
    Get your *ss back on the job, they do NOT care how much pain you are in, how many problems you have, etc. “Someone” has to pay taxes (their salary) and it is not going to be druggies, alcoholics or the welfare folks, it is US!!
    No matter I now take oxycodone, morphine, flexeril, valium, zoloft, injections, etc, just go to work!!
    Now, if I get pulled over, I can go to jail for DUI.
    No matter what you or I do, the “system” does not want us to collect on the insurance we paid into for 20, 30 or 40 years and almost killed ourselves being good workers.
    Yeah, I would rather $1000 a month disability and no benifits over my $40,000 plus a year job…, yeah, right. I always worked 2 or 3 jobs and all the overtime I could get, but now all of a sudden I just turned lazy…, or was it that my back was broken in 4 places?
    Could it be the Lupus?
    Panic attacks?
    Degenerative bone disease?
    Oh no, it could not be any of that, it “has to be” I just do not want to work and making up all of the DR. reports.
    I am VERY Bitter at this point, WE paid into a lying, deceiving system that, if we were NOT americans they would be handing us baskets of cash, grants and all the help we could ever want or use but since we ARE americans, we are less than trash to the political parties that are (j/k) “representing” us.
    I know, I would have voted for them to get a 60%+ salary raise while I do without and am sure everyone else world have too. I am So Sick of america and the BS, lying scum that will sit in judgment of “us” and vote themselves a raise, have $100 a plate dinners, drive in Limo’s, etc. I ALWAYS believed in our government, that if we ever needed them, they would be there for us, but I was very, very Wrong.
    america has no hope! there is no hope in america anymore, it is ALL political Greed, I do not care dem or rep, they have proven all the same, they do NOT care about us that need help through no fault of our own (accident), but welfare has generations of people that have NEVER held a job, but it is ok to give “our” money to them as the politicians drain everything in social security…, I could just….(you know)

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