Claimants scheduled for a Social Security Disability (SSD) hearing before an administrative law judge can sometimes have witnesses testify and can even subpoena witnesses to appear. As your hearing date approaches, you may be wondering how likely is this to occur, and is it a good idea? In my experience representing claimants as a St. Louis SSD lawyer, the answer to both questions is “it depends,” on both the facts of your case and the judge hearing your appeal.
Oral Witness Testimony
Will your witness be allowed to testify?
The Notice of Hearing sent to claimants, detailing the time and place of the hearing and other information, makes it sound like anyone can have witnesses testify, but it is not that simple. Many times a witness is offered by a claimant, and the judge declines. This is usually because the judge feels the witness is unnecessary, as the claimant can speak sufficiently on his or her own behalf, and the judge does not want a witness to just repeat the same information.
A judge generally is willing to hear testimony from a witness when the claimant cannot speak for himself. Some examples include claimants who have had strokes and are unable to talk; those who have seizures and are not aware of what occurs during the episodes or how long they last; those who have mental illness or memory issues and are not aware of their decline; or those who have lowered IQs and cannot articulate their testimony.
On rare occasions, a judge may surprise a claimant and ask if anyone accompanied him who can speak on his behalf. So, a good rule of thumb is to bring someone to the hearing who can speak for you if the opportunity arises.
Who makes a good witness?
Any relative, close friend, case manager, or coworker who has known you for a long time and has knowledge of your daily routine and medical issues is a good bet. A witness should be able to explain how your impairments affect your ability to live your daily life.
A former employer makes an excellent witness. If your employer can attest to the fact you had to work reduced hours, required special accommodations, were absent frequently from the job, or got written up at work because of your impairments, that could be helpful to your case.
Is witness testimony a good idea?
Your disability attorney will decide whether it is a good idea to offer witnesses. For example, if a witness is hostile or inarticulate, or doesn’t understand your medical issues or daily routines very well, that person will not make a good witness. You don’t want someone as a witness who will give inaccurate or damaging testimony.
You, as the claimant, or your St. Louis SSD attorney can ask a witness if he or she will come to the hearing, or your attorney or even the judge can subpoena a witness (issue a formal court order), if the witness is necessary to the case.
If you bring witnesses to the hearing, they will likely have to wait outside the hearing room for the judge to call them, if at all. This is because the judge does not want the witnesses to hear what you say and then adjust their testimony to corroborate yours. If a witness is called into the hearing room, the judge may ask the questions, but more than likely will want your St. Louis SSD attorney to do the questioning. Typical questions include:
- How long have you known the claimant?
- How much time do you spend with the claimant?
- Does the claimant have medical problems and, if so, what?
- When did these problems start?
- Do these problems cause difficulties in the claimant’s daily life, and if so, how?
- How have the claimant’s life and abilities changed since before the onset of the medical problems?
If the witness gives incomplete responses or vague statements, your disability attorney can ask follow-up questions to clarify the testimony.
You may find it unsettling not to know prior to the hearing whether witnesses will be called, but this will be par for the course for your St. Louis SSD attorney. Rest assured that your attorney s will have the experience to adjust to whatever circumstances the judge presents and to work to bring about the best result for you. All you need to do is focus on your testimony.
Written Witness Testimony
The other option for witness testimony is written testimony, as opposed to live testimony at the hearing.
What form does written testimony take?
Some claimants turn in a Third Party Function Report, which is witness testimony of a sort, where someone close to the claimant fills out a questionnaire about the claimant’s impairments and the impact they have on the claimant’s life. This is usually done fairly early in the disability appeal cycle.
Additional written witness testimony can be turned in closer to the hearing date, and this usually takes the form of a letter to the judge. A friend, relative, neighbor, coworker, employer or other person close to you can detail the problems you have in the letter.
Benefits of written testimony
In some ways, written witness testimony may be preferable to live testimony, because you can get it in advance and there are no surprises. The letter can be placed in your file prior to the hearing, and the judge will have a chance to take it into consideration. You don’t run the risk of a witness not showing up
for the hearing or inadvertently giving incomplete or vague answers to questions. You also avoid the risk that the witness won’t remember or articulate crucial details during the hearing, or will make inaccurate statements. For example, you don’t want a witness saying you ride a bicycle when the last time you rode was six years ago, or that you walk your dog every day, when in actuality all you do is open your back door and let the dog out.
Written testimony can be especially helpful when someone can give a first-hand account of your difficulties: how long it takes you to get out of bed in the morning; how long it takes you to do your medicine regime; how sick you are after a treatment; how hard it is for you to cook, clean, shop, or take care of your personal hygiene; whether you go out or stay home all the time; how hard it is for you to drive or socialize; and how your impairments have changed your life.
Many Social Security Disability cases are won without witness testimony, written or live, but in the right situations, it can be a powerful tool to win your case. As an experienced St. Louis SSD attorney, I can work with you to decide if you need witness testimony and in what form. Contact us by phone or email if you would like to discuss your particular circumstances.