Seventh Circuit Judge David Hamilton, the first judicial appointment of President Obama, addressed the full NOSSCR Conference on Thursday morning.
Judge Hamilton stated that empathy is essential to good judging and good lawyering. Judge Hamilton stated that finding facts fairly, and applying the law to those facts, requires empathy. As an example, the judge recently wrote the opinion in Holmstrom v. Metropolitan Life. That opinion starts with this sentence: "This case illustrates the difficult problems presented by claims for disability insurance by people with serious and painful conditions that do not have objectively measurable symptoms."
Judge Hamilton was a U.S. district court judge for 15 years, and he offered some practical tips for federal court appeals of Social Security claims:
- When in federal court, pick fewer arguments and develop them fully.
- Remember that your federal district court judges are generalists, and not Social Security specialists.
- Don’t just quote a precedent for helpful language. Look at cases with similar facts and how they were disposed.
- Remember harmless error.
- As a judge, he looks at the prior work record, and finds an excellent prior work record to be persuasive evidence in a disability case.
- If possible, find efforts of the claimant to "work through the pain," which is also compelling evidence in a disability case.
- Point out “the dog that doesn’t bark,” the absence of negative evidence.
- A doctor’s general statement that claimant is “doing well” must be examined in context. That statement does not mean that the claimant can sustain employment. That general statement in the claimant's progress notes is not inconsistent with the doctor’s specific opinions in his medical source statement(s).
- Consider adding key documents to your appendix in federal court briefs, such an important report from a doctor or a short excerpt of claimant’s testimony (I will definitely do that next time I go to district court).