Who Makes A Good Witness in A Social Security Case?

Social Security Disability law allows lay witness testimony (non expert testimony) to help prove disability.The Fourth Circuit Court of Appeals has been very clear that lay witness testimony that is not contradicted by medical records or other testimony within the case is entitled to great weight in making a disability determination.  Susan O’Malley’s Hines case is one of a very few reported cases out of the Fourth Circuit that upheld the contention that lay witness testimony, when supported by other evidence was enough to prove disability. Having met his threshold obligation of showing by objective evidence a condition reasonable likely to cause the pain claimed, Mr. Hines was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain is so continuous and/or severe that it prevents him from working a full eight hour day. Mr. Hines did so by testifying that his illness and the resulting fatigue require him to lie down “half the day.” Also, his wife testified that Mr. Hines is forgetful, unable to do much around the house, and has “a lot of pains in his leg.” Claimant’s friend, Mr. Ernest Nixon, testified that Mr. Hines suffered from a “lack of energy” and that his energy level is “not the energy he used to have.” Hines v. Barnhart, 453 F.3d 559, at 565 (2006) In Laws the Fourth Circuit Court of Appeals reiterated that an “expert medical opinion and evidence, in itself, may not be sufficient to enable a fact finder properly to determine whether or not a disability exists within the terms of the Act. Where it is not possible to reach a determination based on such evidence subjective testimony by lay witnesses may be entitled to great weight where it is uncontradicted in the record.”  Laws v. Celebrezze, 368 F.2d 640, 644 (4th Cir. 1966). In the Morgan case, the Fourth Circuit went on to point out, “Descriptions of friends and family members who were in a position to observe the claimant’s symptoms and daily activities have been routinely accepted as competent evidence. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987); 20 CFR § 404.1529(c)(3). A disregard for such evidence violates the Commissioner’s regulations about observations by non medical sources as to how an impairment affects a claimant’s ability to work. Id. When an ALJ fails to believe lay testimony about a claimant’s allegations of pain or other symptoms, he should discuss the testimony specifically and make explicit credibility determinations. Smith v. Heckler, 735 F.2d 312, 313 (8th Cir.1984). Behymer v. Apfel, 45 F.Supp.2d 654, 663 (N.D.Ind.1999); see also, e.g., Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir.1996) (“The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony. To the contrary, testimony from lay witnesses who see the claimant every day is of particular value; such lay witnesses will often be family members.” (citation omitted)); Regennitter v. Comm. of the Social Sec. Admin., 166 F.3d 1294, 1298 (9th Cir.1999) (noting claimant’s mother’s testimony, explaining that such lay testimony “provides an important source of information about a claimant’s impairments, and an ALJ can reject it only by giving specific reasons germane to each witness.” (citing Smolen )). As Morgan argues, if family members’ evidence was automatically worthless, it would be an odd exercise in futility to even allow them to fill out questionnaires and submit them into evidence.”  Morgan v. Barnhart, 142 F. App’x. 716, 731 (4th Cir. 2005) Therefore, in light of the Court’s willingness and perceived encouragement to allow non-medical lay witness testimony, a  witness needs to be someone who has regular contact with you.  A friend or relative that helps with chores around the house that you can no longer do makes a good witness. A good witness should be able to describe the things they see you struggle with such as walking, prolonged sitting, or lifting. Just because they can come to the hearing does not make them a good witness. They need to have something to say that will help the judge understand how you struggle on a daily basis because of your disability. If there is more than one witness they each need to be able to tell the judge something unique. Judges can become impatient with repetitive testimony. Witnesses do not need to know anything that is in your medical records. The records will speak for themselves. Witnesses help by telling the judge about the things that do not appear in medical records. A witness can talk about the difficulty you have grocery shopping or getting up the stairs at your home. A good witness is someone who can help fill in the picture of how your disability affects you on a day to day basis. If you have further questions about Social Security hearings, feel free to contact Susan O’Malley in our office.