Eligibility for Disability Benefits and Limitations & Residual Functional Capacity
Estimate Your Limitations
The judge will ask you how far you can walk, how much you can lift, how long you can stand, how long you can sit, etc. You must give the judge a genuine estimate of what you can do. Therefore, it is important to think about these things before your hearing.
If a friend asks you how far you can walk, you probably start thinking of places you have walked to recently, how you felt when you got there, whether you had to stop and rest along the way, and so forth. You are likely to answer your friend’s question by giving one or more examples of walking someplace recently. If the judge asks this question, answer it the same way. Talk to the judge the same way that you would talk to an old friend.
A Social Security disability hearing is not a court hearing. If you are familiar with court hearings or have watched lawyer shows on television, wipe such things from your mind. In court hearings, lawyers are always advising people, “don't volunteer.” What lawyers mean, of course, is don't give any examples or details, wait for the lawyer to ask. In Social Security hearings, this rule does not apply and, indeed, if you don't “volunteer” information, you will not be giving the judge the necessary information to decide your case.
Below are some examples. You decide which testimony is best.
The person who has been advised by a lawyer not to volunteer in answering a question may answer this way:
Judge: How far can you walk?
Claimant: Two blocks.
A person who talks to a judge the same way he talks to a friend, as we’re advising you to do, will answer the question this way:
Judge: How far can you walk?
Claimant: Judge, I can't walk more than about two blocks without stopping to rest. Just yesterday, I went to the store, which is only about a block and a half from my house. By the time I got there, my back felt like it had a hot spike driven into it. I started limping. All I bought at the store was a loaf of bread. I could barely carry it home. On the way home, I had to stop three times because my back hurt so much. When I got home I sat down in my recliner chair and put my legs up before I even put the bread away.
As you can see, the person who talks to the judge as an old friend provides a lot of important information, some good examples and some relevant details.
Also, be aware that there is a built-in problem with the way questions are asked about how long you can stand, how much you can lift, how far you can walk, and so forth. Judges always ask the question in just this way: “How long can you stand?” The question should not be interpreted to mean, “How long can you stand before you are in so much pain that you must go home and go to bed?" If you interpret the question this way and say “one hour,” without any explanation of your answer, you’re likely to lead the judge to think you can stand much longer than you really can on a job. What the judge needs to know is how long you can stand in a work situation where you must stand for a while, are allowed to sit down, and then must stand again, repeating this several times during an 8-hour workday.
Many times it is best to answer the question more than one way. You might give the judge an example of overdoing it and having to go lie down. But if you give the judge that example, be sure to fully explain it. For example, explain that when you washed Thanksgiving dinner dishes for an hour, you had to go lie down for a half an hour. Otherwise, it will show up in the judge's decision that you have the capacity to stand for one hour at a time, when your true capacity in a work situation is much less. But also give other examples that demonstrate the work situation: for example, if you are going to stand for a period of time, then sit, then stand again, this second standing time may be much shorter.
The problem that we have with the way these questions are asked is even worse when the question comes to sitting. This sort of exchange happens all the time:
Judge: How long can you sit?
Claimant: Twenty minutes.
When the judge hears this answer, the judge may look at a clock and write down that the claimant had been sitting there for 40 minutes when that question was answered. Thus, the judge could conclude that the claimant is a liar.
What this claimant meant, of course, is that he could sit for 20 minutes in a work situation, then stand or walk for a while and return to sitting. In all likelihood, a claimant with a sitting problem, after forcing himself to sit through an hour-long Social Security disability hearing, will go home and lie down for a long time in order to relieve the pain in his back. He answered the question truthfully. He can sit for only about 20 minutes in a work situation. If he forces himself, he can sit longer but then it takes some time to recuperate. It is important to explain all this to the judge so that the judge can understand what you are able to do day in and day out in a work situation.
Some people testify that after sitting for a period of time they need to shift in the chair; however, this is a point barely worth making since all of us shift in our chairs. There is virtually no vocational significance of needing to shift in a chair; a person can shift and go right on working.
Here is an example of a good answer to a question about sitting:
Judge: How long can you sit?
Claimant: If I force myself, I can sit here for perhaps a whole hour; but after this, I'll have to go home and lie down, and I won't be much good for the rest of the day. When I am trying to do things around the house, like pay bills, I only sit for about 20 minutes at a time and then I get up and walk around for 15 or 20 minutes before I go back to sitting. If I were on a job where I could change positions between sitting and standing or walking, the length of time that I could sit would get shorter as the day wore on. Sitting is really hard on my back. It's better, though, if I can sit in my recliner chair with my legs up. I can sit in that chair for a long time but I find it really hard, for example, to pay bills sitting in that chair. I usually sit at the dining room table when I pay bills.
It is useful to provide information about what you need to do after sitting for a while. Can you sit for a while and then stand up, stretch, and sit back down and continue working? Do you need to alternate sitting and standing? Can you alternate sitting and standing at a work station all day long? Do you need to walk around after sitting or standing in one place? If so, how often do you need to walk around? How long do you need to walk around each time?
Most jobs give breaks from work every couple of hours. Do you need extra breaks from work? What do you need to do on such a break? Sit? Walk around? Lie down? Sit in a recliner? How often during the workday do you need such breaks? How long should each break be?
The judge or your lawyer may ask you how long out of an 8-hour working day you can sit. What the judge needs to know is the total length of time during an entire 8-hour working day that you are capable of sitting, even though sitting is in short stretches. You’re going to have to think about this before the hearing so that you can give a realistic estimate. The judge may also want to know the same about standing.
Sometimes a problem for testimony comes up if you have good days and bad days. For example, on good days, you might be able to sit, stand or walk for much longer than you can on a bad day. If you have good days and bad days, describe what it's like on a good day and what it's like on a bad day. Be prepared, though, for the judge to ask you for your estimate of how many days out of a month are good days and how many days are bad days. A lot of people answer such questions as, “well, I never counted them.” Count them. The judge will need this information.
Details. Details. Details. The more specifics that you can provide, the easier it is for the judge to understand your testimony about your symptoms and your limitations.
To give good testimony about your limitations, it is really important for you to know yourself, know your limitations, and neither exaggerate nor minimize them. This is hard to do. You will need to think about it, perhaps discuss your limitations with family members and definitely discuss these limitations with your attorney before the hearing..