Should You Bring a Witness to Your Disability Appeal Hearing?

If you plan to bring witnesses to your disability appeal hearing to support your case, you should inform your local Social Security office or hearing office about who your witnesses are as soon as possible after you've chosen them.

Who Should Bring a Witness to a Social Security Hearing

Most disability cases are decided on the basis of your medical records and your doctor's opinion of your how your impairment limits you, as evidenced in the medical records. So often having a witness testify at your hearing won't help your case. For this reason, many disability claimants don't bring any witnesses to their hearing.

In other situations, a witness who knows you and your limitations well, such as a former employer or a caregiver, can be helpful. These witnesses can testify as to just how your impairments limit your work functioning or your daily activities.

In a few specific situations, bringing a witness can be particularly helpful to your case. These circumstances include when you:

• lose consciousness or awareness during episodes, such as epileptic seizure episodes or bipolar manic episodes
• have a mental claim and trouble communicating your impairment, or
• are under 18 (in which case a parent should testify as a witness).

Choosing Witnesses to Testify

Anyone with some specific knowledge of the limitations imposed by your impairments can be a witness. But don't overload the administrative law judge (ALJ) with too many witnesses; two or three are best. A few credible witnesses should be sufficient to make the point to the judge; there is little point in having several people repeat the same thing over and over. It is quality, not quantity, that matters here.

Make sure your witness is very familiar with your impairments. Your witness won't be present when the judge questions you, and a witness who says different things than you do can hurt your credibility and can actually lower your chances of getting disability benefits.

It's highly unusual for a claimant's treating doctor to attend an ALJ hearing. But your treating physician or a caregiver who sees you every day may know your condition better than anyone else. In addition, an ALJ should give your doctor's opinion substantial weight if it is backed up by medical evidence and consistent with information from other doctors or sources. In the event your treating doctor agrees to come, be sure to include the doctor on your witness list. If you don't, the ALJ can postpone the hearing.

You can also request that the ALJ call a medical expert to testify (paid for by Social Security), if you think it will help your case. However, doing this without a disability attorney to question the medical expert can be foolhardy, since a medical expert is not usually on your side.

At Your Disability Hearing

You are responsible for contacting your witnesses and making sure they show up at the hearing. At the hearing, even if you have submitted a list of witnesses beforehand, the judge can refuse to hear some or all witnesses testify; it is up to their discretion.

Once your witnesses are sworn in and some basics are established, the ALJ will move on to your witnesses. The ALJ will usually be the first to question any witnesses you bring to the hearing. You or your lawyer may question the witnesses after the judge. This means that you or your lawyer will need to listen carefully during the judge's questioning, and ask your witness only those questions that will bring to light whatever the judge left out. There's no need to bore the judge by going over the same territory.

Part of winning your case is making sure that the judge "gets" why you're disabled. If, for example, the judge asks your doctor about your condition, which is in remission, but fails to ask about the medication that keeps it in remission—and if that medication puts you to sleep—be sure to ask your doctor to talk about it during the hearing.

How Your Witness Should Testify

The best witnesses are those who can testify to your inability to perform certain activities because of your impairments.

Example

Dwayne has chronic back pain related to degenerative arthritis and scarring around nerve roots associated with prior surgery for a herniated disk. Dwayne describes at his hearing the medications he takes for his pain, the doses, the other pain treatments he receives for the pain, and how the pain limits his sitting, standing, bending, lifting, and walking. The DDS said that Dwayne could lift and carry up to 50 pounds, frequently bend his back, and stand six to eight hours daily. Dwayne tells the ALJ that he tried to lift 30 pounds and was in excruciating pain for a week, and that he can't sit in one position or stand for more than an hour at a time. His wife, who has been helping him around the house and with bathing and dressing, testifies to these facts as well.

Witnesses for Mental Conditions

Your witnesses should be able to testify as to how your mental disorders limit your activities. What can you do and not do? Exercise independent judgment? Plan and cook a meal? Shop alone and return home without getting lost? Remember things, people, or obligations? Relate to other people? Bathe and dress alone? Finish tasks in a timely manner, if at all? Do your own grooming and hygiene? Pay bills? An employer or coworker in a mental disorder claim might testify that you can't remember work procedures or are too irritable to work with other people.

Example

Homer has progressive dementia of the early-onset Alzheimer's type, and his employer is a witness. The employer tells the ALJ that Homer has slowly lost his ability to do his job as a supervisor in a furniture manufacturing facility— he couldn't remember procedures, didn't seem motivated any more, and he was irritable and short-tempered with the employees he supervised. As examples, the employer stated that Homer had left dangerous machinery running unattended, hadn't returned tools to their proper storage places, and had blamed other employees for his shortcomings. Sometimes, Homer would just start crying for no reason and that would upset the other employees as well as the work schedule. On other occasions, Homer seemed to be unaware of dangers and walked right in front of a forklift carrying heavy boxes. He tried to give Homer simple jobs requiring minimal skill—such as counting boxes in the warehouse—but Homer still couldn't seem to do them without too many errors. The manager said he was sorry, but he had to lay Homer off work indefinitely.

For more information on handling witnesses and experts at your disability hearing, see Nolo's Guide to Social Security Disability, by David A. Morton, M.D., former medical consultant for Social Security. And because some witnesses have the potential to be harmful to your case, you may want to consult with a disability attorney before bringing witnesses to your hearing.