The most common legal argument used to win Social Security disability claims is called the functional capacity argument.
When we present this argument, we are asking the judge to conclude that because of your medical condition you no longer have the capacity to function reliably at even a simple, entry-level job.
At your hearing, we will want to show the judge why you would not be reliable. Here are some examples of the type of evidence we would present:
- problems with attention and concentration
- problems with persistence at work
- problems with pace of work (too slow)
- problems getting along with co-workers, supervisors or the general public
- problems remembering job instructions
- need to take unscheduled breaks to use the restroom
- need to take unscheduled breaks to stretch and loosen joints
- likelihood that you will miss 2 or more days a month because of symptoms
- need to recline during a typical workday
- unable to climb ladders, ropes or scaffolds
- unable to work at unprotected heights or around hazardous machinery
- unable to sit and stand for a total of 8 hours during a workday
- limitations on lifting or carrying
- medication side effects (drowsiness, fatigue, frequent urination, problems concentrating)
Some of these limitations may be very severe, while others may be less so. However, we would argue that taken as a whole, the combination of limitations would prevent simple, entry-level work.
Testimony of the Vocational Expert
Prior to your hearing, the judge will review the medical record in your case. During your hearing, the judge will ask you questions and will listen to your answers to questions that your lawyer will ask.
In most cases, the judge will ask a vocational expert witness to testify. The vocational witness in your case is not there to hurt you or help you, and these vocational experts are usually experienced in hearing testimony.
After listening to your testimony, the judge will then turn to the vocational expert for help understanding your past work and for help understanding the requirements of simple jobs in the local and national economy.
The judge will pose one or more hypothetical questions to the vocational witness – these questions represent the judge’s conclusions about your functional capacity.
We want the vocational witness to testify “no jobs” – that will mean that there are no jobs out there which would allow for someone with your functional capacity.
Examples:
Example 1: Mr. VE, assume we have an individual who is the same age as our claimant, with the same medical record and same work history. Assume further I find that this hypothetical individual can perform work at a light level (light means that you can lift 10 lbs. frequently and 20 lbs. occasionally, and you can stand for up to 6 hours out of an 8 hour day).
However this individual has the following additional limitations:
- because of long standing right ankle pain and limitation of movement, this person could only climb ladders, ropes and scaffolds occasionally;
- this person needs a sit/stand option for up to 4 hours a day
- this person should only interact with the general public occasionally, meaning no more than 4 times a day
- this person is limited to simple, one or two step tasks
Based on this profile, could this person perform the claimant’s past work or any other work?
Example 2: Mr. VE, assume the same limitations as in Example 1, but add the following:
- ladders, ropes and scaffolds limited to rarely
- this person cannot perform overhead lifting with the right, dominant arm
- this person should avoid pushing and pulling more than 10 lbs.
Based on this profile, could this person perform the claimant’s past work or any other work?
Example 3: Mr. VE, assume the same limitations as in Example 2, but add the following:
because of diuretic medications, this person would need to take unscheduled restroom breaks at least 4 times per day lasting 5 to 7 minutes, every day
Based on this profile, could this person perform the claimant’s past work or any other work?
- I can tell you from experience that most vocational experts would be able to identify jobs for Examples 1 and 2, but no jobs for Example 3.
- Examples 1 and 2 would allow for simple, entry-level sit down jobs such as surveillance system monitor or hand packer.
- Example 3 would preclude all work because of excessive breaks
Each of these examples represents a variation of a claimant’s residual functional capacity (RFC). Your RFC represents the judge’s conclusions about your capacity to perform work tasks. The residual functional capacity profile at Example 3 creates too many limitations too allow for competitive work.
Our goal, when appearing at a hearing will be convince the judge to come up with a very restrictive question for the VE, such that the VE’s answer will be “no jobs.” That’s how to successful argue for disability based on a functional capacity argument.