The effect of a disability on one’s normal activities is an element of damages in most litigation cases. It has vital importance in disability cases. At Social Security hearings, you will typically be asked about your typical at-home activities. This inquiry is a constant in Social Security law, and is needed by a Judge to determine the client’s baseline level of activity at home, to see how that translates to potential work activities. The inquiry often is intrusive, with questions directed to whether the claimant goes grocery shopping, does yardwork or household cleaning, travels or exercises. A portion of a judge’s decision is usually directed towards “activities of daily living” where the judge attempts to distinguish between what is stated to a physician or health care provider, and what the person is doing at home. However, as advocates, the attorneys at MMA distinguish the level of activity and the consequences of home activities to ensure that this information is accurately portrayed. Case law ensures that these activities of daily living are not taken out of context:
In Lorman v. Comm’r of Soc. Sec., the Court made note of the important distinction between the occasional home activity and comparing it to activities in a forty-hour workweek. The Court stated “there is a significant difference between doing minimal self-sustaining household chores and performing work 40 hours a week for 52 weeks per year. Plaintiff’s ability to perform some activities on a limited basis is not substantial evidence that her symptoms are not disabling. See, Rogers v. Comm’r of Soc. Sec., (the minimal daily functions of driving, cleaning an apartment, caring for pets, laundry, reading, exercising and watching the news are not comparable to typical work activities). See also 20 C.F.R. 404.1572(c) (“*Generally, we do not consider activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity.”*). In Ogletree v. Colvin, (Greenberg, M.J.), the Court reaffirmed the Lorman holding that minimal activities of daily living such as spending time with grandchildren, attending GED classes and getting married equate to an ability to maintain full time employment…. the mere fact that Plaintiff acknowledged some rather minimal level of activities, performed with some difficulty, is not necessarily indicative of an ability to perform substantial gainful activity for 8 hours a day, nor can her testimony be reasonably construed as conflicting with Dr. Hoy’s assessment as to her ability to stand. See e.g., Kalmbach v. Comm’r of Soc. Sec., (finding the claimant’s ability to prepare her own meals, dress herself independently, drive short distances and go to the grocery store, pharmacy and church constituted “minimal activities [that] are hardly consistent with eight hours’ worth of typical work activities”).
Nonetheless, many judges seize upon inconsistencies when the claimant appears, directly or indirectly, to report unrestricted home activities and then reports more narrow activities to a medical provider. Often, as we argue, this does not account for disability symptoms waxing and waning for claimants, or the ability to perform an activity for an hour but not for longer time periods. While there are arguments on both sides of the equation, advocacy dictates that the medical record and activities must be taken as a whole. Cherry picking of the evidence, including when some activities occur, is largely prohibited, and often in controversy. See, Johnson v. Comm’r, (“This Court has not hesitated to remand cases where the ALJ engaged in a very selective review of the record and significantly mischaracterized the treatment notes.”).
