Developing a Winning Theory

One of the bigger contributions a disability attorney makes to your claim is developing a winning theory for your case.

The theory is one or two sentences that sum up your case and explain why you should be found disabled.   Sometimes the theory is as simple as this: “The claimant, whose past work was semi-skilled medium work, is 54 years old and is limited to sedentary work by degenerative disk disease. Because he has no transferable skills, Rule 201.14 of the Medical-Vocational Guidelines requires that he be found disabled.”

In more difficult cases, such as those involving literate claimants under age 50, the attorney’s theory is an explanation why the client cannot do a broad range of sedentary work

The first step in your attorney developing this theory is listing your symptoms and impairments, with the most limiting ones first.  Each impairment must be supported by the medical records.  And there must be a clear link between each medical impairment and the resulting symptoms.  A symptom unrelated to a diagnosed medical impairment cannot form the basis for a finding of disability.

Ability to Work

The next step is for your attorney to record your residual functional capacity, which is what you can do on a sustained basis in a work setting despite your impairment. A few examples are:

• __________ says that s/he can walk about ___ blocks before stopping.
• S/he can sit for about ___ minutes at one time and stand for about ___ minutes at one time.
• Out of an 8-hour working day, s/he says s/he can sit for a total of ___ hours and stand/walk for a total of ___ hours.
• S/he needs to walk around approximately every ___ minutes for about ___ minutes.
• S/he needs a job that permits shifting positions at will.
• Because of:
  • muscle weakness
  • pain/paresthesias, numbness
  • chronic fatigue
  • adverse effects of medication
• S/he may need to take unscheduled breaks [to lie down] during an 8-hour working day. S/he expects this to happen __________; and s/he may need to rest ___ minutes (on average) before returning to work.
• If s/he had a sedentary job, because of __________ s/he says s/he would need to elevate his/her legs about ___% of the time during an 8-hour working day. S/he needs to elevate his/her legs about __________ high.
• S/he needs a cane to walk because of:
  • imbalance
  • pain
  • weakness
  • dizziness
  • insecurity
• S/he can occasionally lift and carry ___ lbs. and frequently lift and carry ___ lbs.
• S/he says that because of:
  • pain/paresthesias
  • motor loss
  • sensory loss/numbness
  • muscle weakness
  • swelling
  • side effects of medication

  The theory of your case is the engine that runs it.  The theory guides the development of the case’s evidence and its hearing testimony.

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