Will It Help to Have A Friend or Relative Testify?

Roseann Marie Zirnsak v. Carolyn W. Colvin, Commissioner Social Security United States Court of Appeals, Third Circuit No 2014-1168 Opinion Filed December 9, 2014 Not Precedental

Clients often ask this question. Usually the answer is no even though the law does allow for it. Friends, relatives, and even someone’s priest, pastor, or rabbi can testify on their behalf. Their testimony though needs to support the rest of the evidence presented and ideally provide new useful information to the Judge that has not already been presented. The case of Marie Zirnsak illustrates this point.

Roseann Zirnsak and her Attorney appealed her denial of benefits all the way up to the Third Circuit Court of Appeals. This is just one step below the United States Supreme Court. There are many legal issues discussed in this case, which Roseann eventually lost after five years of fighting. One issue though is when non- medical sources of testimony and evidence can be submitted and how it is to be evaluated.

“A Judge can consider evidence from non-medical sources to determine the severity of a claimant's impairments and how those impairments impact the claimant's ability to work.” (20 C.F.R. Section 404.1513(d)). These sources can include "spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy." (Id. Section 404.1513(d)(4)) Social Security has said that the factors Judges should use in evaluating the weight to give such sources include "the nature and extent of the relationship, whether the evidence is consistent with other evidence, and any other factors that tend to support or refute the evidence." (SSR 06-03p, 2006 WL 2329939, at 1 (Aug. 9, 2006)

Roseann submitted letters from friends describing her limitations and her husband also testified in person regarding her limitations. The Judge though little weight to anything either her friends or her husband said. This was for two main reasons. First the letters were inconsistent with the medical record for the same period they were describing. The decision does not state what these inconsistencies were but we can take an educated guess. Her husband and her friends probably said she was very very limited in what she could do no her own and the doctors notes and medical records indicated she was only somewhat limited. That’s to simplify it. Second her husband and friends talked about her during one time period when the issue before the Judge was whether or not she was disabled during a different time period. I will discuss the timing issue in another post. So in this case her friends and husband actually hurt her case.

Ultimately your Attorney should discuss the pros and cons of having friends or family testifying specific to your case. Then the right decison for you can be made.