Lay Witnesses and Your Disability Claim

While a disabled person has the best understanding of how they feel, a spouse, relative or close friend may also be witness to the day-to-day challenges of the disabled person. Since this person can provide additional insight, he or she can be a very valuable lay witness when it comes to a hearing in front of an ALJ.

Often in the past, ALJs have not given the testimony of lay witnesses very much weight. However, because of cases such as Caldwell vs. Astrue (http://tinyurl.com/cch8jwm), the testimony of a lay witness must be taken into account.  Social Security recognized the importance of lay witness testimony when it promulgated the guidelines in Social Security Ruling 06-3p.

Unfortunately, many ALJs believe spouses, relatives and close friends provide testimony that is biased due to the fact that they are close to and care for the claimant. This is a problem because these are the people who tend to observe a claimant’s disabilities and day-to-day struggles more than any other person.

Depending on the particular case, it may be more effective to find a lay witness that is outside the claimant’s close circle, such as a former coworker who can testify in regards to how the claimant performed at a past job while struggling with a disability, or a neighbor who has seen the claimant attempt to cut the lawn but fail to do so due to pain. ALJs tend to characterize these types of people as being more objective than spouses, relatives and close friends.

Regarding the testimony itself, the more objective a lay witness can be, the better it is for the ALJ to make an informed decision. By emphasizing observations over conclusions, this allows the ALJ to come to his own conclusions because he can then consider the testimony along with all the other objective evidence in the file. The lay witness is neither a doctor nor a psychic, therefore, it is best if testimony is left at what the lay witness has seen or heard, rather than give an opinion on why the claimant is disabled or how. Similarly, statements such as “totally disabled” or “permanently disabled” made by a lay witness could cause the ALJ to give little weight to his or her testimony, particularly if the medical evidence does not reflect “total” or “permanent” disability.

“Before and After” testimony is quite helpful from lay witnesses, especially if the lay witness is a spouse, relative or close friend. These types of lay witness often know a claimant intimately before and after they became disabled and can testify as to what sorts of activities they used to engage in that they can no longer do, especially working. They can also describe how some activities have changed, such as needing assistance putting on socks or bathing.

Whether lay witnesses are allowed to testify in person is up to the ALJ’s discretion. In cases where a live lay witness is not permitted, the ALJ may consider written testimony instead. This can be in the form of a questionnaire, letter, or an affidavit signed by the lay witness and notarized. Often this is the preferred form of lay witness testimony, as the witness can collect his thoughts and put them on paper well before a hearing takes place. This also allows a claimant’s representative to review the statement ahead of time to determine whether or not it is helpful to the claim. 

Overall, it is not always necessary to have a lay witness testify on a claimant’s behalf, but it is empowering for a claimant to know that he or she has this right in case it is needed.

Written by Anna Westfall & Attorney Andrew November

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