Proving Disability Based on Impaired Functional Capacity
How do you convince a Social Security Administrative Law judge that you qualify for disability benefits? There are several arguments you can make but the most common approach is to argue that your functional capacity for work has been so impaired by your physical or mental condition that you are unable to reliably perform even a simple, unskilled job.
The main issue in any Social Security claim has to do with your capacity for work. Social Security defines “disability” as the inability to engage in substantial gainful activity because of a medically determinable condition or conditions that has lasted or is expected to last 12 consecutive months.
As you can see, the concept of “disability” looks at problems that you might have performing “substantial activity” - work or work like activity. A functional capacity argument says that your capacity for work has been so impaired by your medical or mental health conditions that you would not be able to perform even a simple, sit down type of job.
Social Security Judges Rely on Independent Vocational Witnesses to Evaluate
Your Capacity for Work
Because most disability cases are evaluated based on your potential work capacity, Social Security ALJ’s frequently request the presence at hearings of independent witnesses called “vocational experts.” These witnesses appear to describe and classify your past work and to answer questions from the judge about other jobs that you might have the capacity to perform.
The hypothetical questions from the judge describe activity restrictions that Your goal, therefore, is to persuade the judge to present evidence to show that your capacity for work has been so degraded that you would not be able to perform in a competitive workplace.
Example of a Hypothetical Question
that a Social Security Judge Might Ask
Here is an example of a hypothetical question that a judge might ask at a disability hearing:
Q: Mr. Vocational Witness, assume that we have an individual who is 48 years old and who is the same age, and has the same education and work history as the claimant. Assume further that this hypothetical person is limited to the light exertional level, with the following conditions and limitations:
- because of complications from his diabetes, this person has occasional numbness in his feet and hands. He cannot work at unprotected heights, near hazardous machinery, and could not perform any job that requires precise hand movements such as picking up small objects.
- because of pain and limitation of motion in his back arising from a multi-level disc herniation, our hypothetical person has the same limitations as those described by Dr. Jones in the functional capacity form Mr. Ginsberg submitted, which has been marked as Exhibit 21F. I want to call your attention specifically to question 19 which says that our hypothetical person would need to have his legs raised at least 4 hours per day, and question 7 which says that our hypothetical person experiences pain that causes a significant interference with attention and concentration and a significant interference with pace of work. For our purposes, “significant” means seriously limited but not precluded. I also want you to consider question 11 which says that our hypothetical person would need to take multiple unscheduled breaks throughout the day.
- I want you further to assume that I find our claimant credible when he testified that he experiences pain at a level 8 on a 10 point scale at least 3 times per week for a duration of 2 to 3 hours each time. Assume that I find that when our hypothetical person’s pain is at level 8, our person cannot perform at a vocationally acceptable level.
Based on this hypothetical, could such a person return to past work, and, if not, could he perform any type of work? This hypothetical, by the way, would result in a favorable decision because any competent vocational witness would conclude that a person with this many limitations on his functioning would not be able to sustain competitive work.
The judge creates his hypothetical question from the following sources:
- your medical record
- your testimony
- a functional capacity form prepared by your lawyer and filled out by your treating doctor - often this is the most important factor
In my practice, I make a determined effort to have a completed functional capacity form in every case. This form consists of around 20 questions that I put together to help your doctor “translate” your medical problems into specific work limitations. Based on my experience trying disability cases, I know which questions will trigger a vocational witness to testify “there are no jobs that fit that hypothetical question.”
As your attorney, my job involves practicing with you prior to a hearing to help you use the right kind of language when answering questions from me or from the judge. My job also involves reviewing your medical record to identify vocationally relevant information. Any my job involves soliciting your doctor’s help in getting a functional capacity form completed and submitted. You can review dozens of “disability case studies” that I have written about actual cases I have tried at my Georgia Social Security disability attorney web site.
If you would like to read about another argument that I frequently use in my cases - the “listing” argument, please click the highlighed link.
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