Can you introduce witness evidence at the disability hearing?

Recently, I had a prospective client come into the office to have me review his denial of benefits and determine if I would handle an appeal.  He indicated that  his other representative told him that no witnesses would be allowed in his case.  I have had experience with an Administrative Law Judge who limited the number of witnesses, provided that witnesses submit their testimony by written submission, but I had never run into a ALJ who said, “No witnesses”.

So what are the rules?   A good place to start is at 20 C.F.R. § 404.916. Disability hearing—procedures.

“(b) Your procedural rights. We will advise you that you have the following procedural rights in connection with the disability hearing process:

(1) You may request that we assist you in obtaining pertinent evidence for your disability hearing and, if necessary, that we issue a subpoena to compel the production of certain evidence or testimony. We will follow subpoena procedures similar to those described in § 404.950(d) for the administrative law judge hearing process;

(2) You may have a representative at the hearing appointed under subpart R of this part, or you may represent yourself;

(3) You, or your representative, may review the evidence in your case file, either on the date of your hearing or at an earlier time at your request, and present additional evidence;

(4) You may present witnesses and question any witnesses at the hearing;”

Lay witness testimony can be submitted by written letter, sworn affidavit or testimony at a hearing.   Which method to use depends a lot on the witness.  If the witness is well spoken, over a lengthy period of time, s/he had had close contact to claimant, and can testify in a direct manner concerning detailed information, it might be preferable to have live testimony. Other cases may be better submitted by written statement or affidavit.

Why do I emphasize a credible individual? Many times your witnesses will not be allowed to be in the hearing room when you are questioned and testify.  After you have completed your testimony the Administrative Law Judge will allow your witness to testify. If, in an attempt to help you win your claim,  your witness exaggerates, lies, or provides inconsistent information from what the claimant testified to, the testimony in the eyes of the judge may hurt the claim.

There are some instances in which calling a witness can be helpful. A judge might want to hear from a witness for a claimant who because of his/her impairment cannot fully testify on his/her own behalf. For example, claimants who have faulty memory, speech impediment, mental or emotional issues that make claimant lose control.
In fact, a judge may ask to receive testimony from a close friend or family member present at the hearing – even if you hadn’t intended for them to be a witness!  This is generally done when the judge feels that the claimant, for whatever reason, is unable to elaborate well enough on a particular subject.

In the end, the judge will decide whether or not a witness will be allowed. Your attorney will be able to advise you on the matter in order to provide the best outcome for your claim

You should select one or at most two people and each of your witnesses should be able to talk about what you can and cannot do, what activities you have trouble with, how your work performance has suffered, how your personal life has suffered, and the hope is that the witness(es) can shed additional light upon the effects of your impairment on your life. Remember, what you are trying to accomplish at a hearing is proving that  you cannot do work that you did in the prior fifteen years and that you cannot adjust to other work because of your medical, psychological condition(s), and your disability must also last, or be expected to, or has lasted for at least one year (or result in your death).

Once you have selected your witnesses, you should contact the Social Security Administration or hearing office right away to let them know. If you do not inform them ahead of time, your witnesses may not be allowed, or your hearing may be delayed.

Notwithstanding the foregoing, I like to have witnesses provide written statements for submission into claimant’s file.  It gives me an opportunity to review what is being presented, and it provides the author with an opportunity to include everything they think is relevant.

I have found that in many cases, submitting a written letter is more helpful than having a witness provide live testimony. It gives the Administrative Law Judge an opportunity to examine the written evidence before the hearing.
A nice thing about a written statement, it gives time for the author to express all that is considered important.  Life testimony doesn’t  provide any second thoughts or do-overs after a hearing.  After testifying, many times witnesses’ stated regrets for things not said.
Finally, hearings are generally set on a pretty tight schedule. Each hearing is scheduled for a short period of time, i.e., one hour  to one hour and a half.  It helps everyone by getting the testimony before the Judge in the time allowed.

Lastly, I like written statements because, at the hearing you know the testimony is in the record and you need not worry about it if the witness doesn’t testify; if the witness doesn’t appear; or if the witness falls apart on the stand or will not stop talking and puts material into the record that damages the case.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.