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by Scott E. Davis, Disability Attorney
September 21, 2001
In a social security disability claim, the credibility of the client is often the determining factor of whether the claim is approved or denied. For cases involving chronic pain or fatigue, such as fibromyalgia or chronic fatigue syndrome, the credibility of the client is usually crucial to success. The reason for this of course is due to the fact that those diagnoses involve subjective symptoms and limitations that usually cannot be objectively quantified by medical or laboratory tests.
Thus, SSA and judges will listen to the client’s story about why they are unable to work due to the frequency, severity and duration of their symptoms; but they will also look for corroborating evidence from other sources such as doctors or individuals who know the client.
As you may know, my practice is exclusively disability law and I specialize in chronic pain and fatigue cases representing clients throughout the United States. Over the past several years I have been very successful in winning disability cases before SSA and judges throughout the United States. While winning hundreds of cases and losing only a small percentage of them, I have learned a great deal about how to win chronic pain and fatigue disability cases as well as the importance of a client’s credibility.
A tool I have used extensively for the past several years is to obtain affidavits or statements from a client’s former co-worker (or preferably a supervisor), family member or long-time friends. What is an affidavit? It is simply a notarized document that essentially is a narrative letter regarding a person’s observations of problems the client has functioning on a daily basis due the symptoms and limitations, with a conclusion that they are unable to work in any occupation as a result. In my opinion, it is essential that SSA and a judge have corroborating evidence from those who know a client the best and the affidavit performs that function.
Because I view a client’s credibility as paramount to the case, I want to protect it, develop it and support it from as many different independent sources as possible. The quality of the affidavits or statements and from whom they are from matters more than having a large volume of them by people who do not know the client well.
I know thoughtful affidavits have a big impact on SSA and judges because I have seen countless judges from all over the country reference them as a reason why they approved my client’s claim. I have also talked with judges after a hearing and they have told me the affidavits provided persuasive support of my client’s allegations regarding their limitations.
It must be noted that it is unlikely an affidavit alone will win a disability case; but along with other corroborating medical records and doctor’s opinions it can be a powerful tool. Use this article as a foundation for developing this important part of your claim.
Tip #1 The Affidavit should be Brief
To avoid lulling weary SSA personnel or a judge to sleep, I believe the affidavit should be no more than two (2) pages in length. Please remember your file will contain several hundreds of pages of records…you want the affidavit to be read and be factored into your claim.
Tip #2 The Affidavit should be on regular paper and be Notarized
The document itself can be on any regular paper (preferably 8 ½ x 11 inches), preferably typewritten and should be titled “Affidavit.” However, any paper will do and a handwritten one is better than nothing. It should be notarized because this will confirm that the person who purported to draft the affidavit actually signed it before a notary public. The notary stamp and signature should go at the end of the text and after your signature (remember not to sign it until you are before the notary!).
Having the affidavit notarized eliminates any question with regard to authenticity of the document (i.e. you are not trying to pull one over on SSA or a judge!). If it is not possible to obtain a notary then simply submit a handwritten statement.
Tip #3 The Content of the Affidavit is Critical
The contents of the affidavit determine whether it is a piece of evidence that will be persuasive in the case. The affidavit should always conclude with a sentence that the client is unable to engage in any occupation and due to what reasons.
The contents should be organized by paragraph, numbered and should discuss the following in a separate paragraph or less: the background of the person making the affidavit (i.e. occupational status and title, address); how long they have known the client, how they met (family, work, friends), and how often they have in person or telephone contact; discuss what the client’s activity/work (work ethic) level was like before they became unable to work.
The bulk of the affidavit and several paragraphs should be devoted to discussing the physical or psychological changes that the client exhibited at the time they last worked (i.e. observations of chronic pain and fatigue, spending days in bed, dramatic changes in appearance, lack of stamina, absences from work, being unreliable); discuss the physical limitations they have (the ability to sit, stand, walk, or do anything for only short periods of time); a medical treatment/medications/therapy they have tried without success; discuss how limited the are in activities of daily living.
The last two (2) paragraphs must conclude with a statement that due to the above discussed reasons the client is not able to work in any occupation and that you are willing to discuss your affidavit with the judge if necessary.
Tip #4 How Many Affidavits should you Obtain?
With regard to quantity, less is better, the nature of the relationship with the client and content of the affidavit are the issues. I like to obtain as many as we can from former co-workers or supervisors. Then I like to obtain one from a spouse or long-time significant other, family members and then finally long-time friends. Generally, the complete story of the client can be told with three (3) or at most four (4) affidavits from those people who know them the best.
Best of luck in your pursuit of disability benefits and remember never to quit!
Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis represents clients throughout the United States. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his practice is devoted to representing individuals with chronic pain and chronic fatigue disorders. In almost every case, a fee is charged only if his client obtains benefits. Mr. Davis invites your questions and inquiries regarding representation via telephone (602) 482-4300, or email: harris.davis@azbar.org.
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