One of the arguments you can use to argue for disability when you appear before a Social Security judges is called the “functional capacity” argument. This is the most common argument I use in my cases.
Basically when you make a functional capacity argument you are saying that because of the limitations caused by your physical or mental health conditions, you would not be a reliable worker. You are saying that your capacity to function in a competitive work environment has been so reduced by these problems that you cannot perform the duties of even a simple, entry level job for 8 hours a day, 5 days a week.
What are Functional Capacity Limitations that Win Cases?
After trying hundreds of cases, I have a good sense about which functional capacity limitations result in favorable decisions. Here is how I apply this knowledge when I represent clients: In most hearings, your judge will call a vocational expert witness (the “VE”) to answer hypothetical questions about your capacity for work. Here is an example of a hypothetical question:
“Mr. Vocational Witness, I want you to assume that we have a hypothetical person who is the same age as our claimant, with the same level of education and the same work background. I want you further to assume that our hypothetical person is limited to light work, but with the following restrictions:
- this person can sit up to 45 minutes at a time, and can sit for up to 3 hours total during a day
- this person should not perform any job that requires overhead lifting over shoulder level with the right arm
- this person is limited to occasional crawling, crouching, stooping and kneeling
- this person is limited to occasional use of ladders, ropes and scaffolds
- this person should be limited to simple, repetitive work with minimal changes in his work setting
Based on this hypothetical, could such a person return to the claimant’s past work. Could such a person perform any work in the regional or national economy?”
My goal, as your attorney, is to present a case that will prompt the judge to pose a hypothetical question with so many limitations that the VE will answer “no jobs.” The question above, by the way, would most likely not win a case since there are jobs that fit within that particular hypothetical.
Some of the functional capacity criteria that do win cases include such things as:
- excessive breaks from work (usually 3 or more unexcused breaks during the course of a week)
- excessive unexcused absences from work
- excessive unscheduled bathroom breaks during a day
- inability to maintain attention and concentration for 1 to 2 hours during a workday
- inability to perform tasks at a workmanlike pace
- inability to complete a workday without interference from psychologically based symptoms
- need to lie down for 45 minutes during a workday
If any of these limitations were added to the above hypothetical question, the VE would most likely answer “I am not aware of any jobs that such a person could perform.”
Hearing Preparation is the Key
When I represent you, I will meet with you prior to your hearing to practice answering questions about your work capacity. It is not enough to say “I have to go to the bathroom a lot.” Instead, you should say “I need to go to the bathroom to urinate at least once an hour because of the diuretic medication I take.”
It is not enough to say “I can’t walk very far.” Instead you should say “I can walk no more than 2 city blocks – about 100 yards, before my back seizes up and I have to stop and rest for 20 minutes. I can then walk another 100 yards. I can walk no more than 1 hour total during a day.”
In our hearing preparation, we will sketch out what we consider to be your capacity to perform competitive work. We will then practice asking and answering questions so that you can clearly set out for the judge the specific limitations you have that prevent you from working 8 hours per day, 5 days per week.
Obviously the medical record in your case must contain evidence that supports your testimony about work activity limitations. But at the very least, your testimony must be such that if the judge accepts it as truthful, the VE will testify “no jobs.”