Physical Residual Functioning Capacity (RFC) Assessment
based on observation
on date of hearing and
since alleged onset date (AOD)

I have personally observed claimant’s symptoms, limitations and daily activities since this Beginning Date and his RFC was the same as reported in this sworn witness statement:

Beginning Date (if differs from AOD):_________

I have observed claimant (frequency-first date)___________________

Today’s date______________________

In my observation, at all times as stated above, Claimant is capable of Occasionally lifting and/or carry (including upward pulling) (maximum)
Less than 5 pounds_____
less than 10 pounds____
10 pounds ____
20 pounds ____
50 pounds ____

2. In my observation at all times as stated above, Claimant is capable of Frequently lifting and/or carry (including upward pulling) (maximum)

Less than 5 pounds_____
less than 10 pounds_____
10 pounds_____
25 pounds_____
50 pounds or more_____ 

I HAVE OBSERVED THE FOLLOWING MINUTES BEFORE THE HEARING;

Today and since his onset date (or date otherwise stated above), claimant picked up (or was incapable of picking up) in the following way;

lifting up 5 pound weight yes___ no___ other_____________
lifting up 10 pound weight yes___ no___ other_____________
lifting up 15 pound weight yes___ no___ other_____________
lifting up 20 pound weight yes___ no___ other____________

Claimant was presented with marked weights by this witness sitting at the conference table in the conference room of the Office of Disability Adjudication and Review a few moments prior to claimant’s hearing. The results of this presentment produced the foregoing empirical observations.

Any so called Residual Functioning Capacity Assessment in claimant’s file that was done by any other person, such as a consultative examiner, was NOT done with empirical testing but are mere guesses and speculation and thus such assessments are worthless as they lack foundation.   Furthermore, even if they had any value, they are superseded by this assessment of empirical observation over time, on a sustained basis and also again moments prior to the hearing. 

Claimant objects to any assessment by a social security adjudicator that the observer’s observations herein should be viewed “with caution” as such a statement is made by the adjudicator without any foundation whatsoever and is an illegal and improper way to give no weight to this true and accurate evidence without really giving the observations any weight to be reviewed by the AC and District Court.  (Indeed, the adjudicator should view “with caution” statements with good reasons as they are made by consultative examiners who are paid by SSA and are inclined to speculate that claimant has a higher RFC than claimant has so that the Consultative Examiner will continue to get payments for CEs in the future from SSA in the future and who also render opinions of what the claimant’s RFC is without any foundation whatsoever (e.g. has claimant lifted no weights and has claimant walk not a foot during the consultative examination))

___________________________________Claimant concurs in the accuracy of this RFC   Date as stated above
Claimant 

The foregoing is true and correct. I make this statement under oath and under penalty of perjury. Any family or friendship relationship with claimant is eliminated as a factor in my accuracy or credibility and as I have taken an oath to tell the truth; my only motivation is to tell the truth and be faithful to that oath. Furthermore, I hereby renounce any financial benefits past or future that may be derived from any benefits claimant acquires through this application and by way of any of my “under oath” testimony, herein.

___________________________________________________

Witness  Spell out NAME and ADDRESS and RELATIONSHIP if any to claimant and any reasons, if any, why you are not telling the truth or not giving an accurate residual functioning capacity assessment.  Date as state above.

Date of Hearing

footnotes:

^{# The Social Security Administration shall consider all evidence 20 CFR Sec. 416.929(c)(2) The regulations acknowledge that observations by non-medical sources may help SSA understand how a medical impairment affects a claimant’s ability to work. 20 C.F.R. §404.1513(d)(4).
Testimony and statements made by “others” about a claimant’s restrictions, daily activities, efforts to work, etc., are included in SSA’s definition of “evidence.” 20 C.F.R. §404.1512(b)(3). In assessing residual functional capacity, SSA will “also consider descriptions and observations of your limitations from your impairment(s), including limitations that result from your symptoms, such as pain, provided by you, your family, neighbors, friends, or other persons.” 20 C.F.R. §404.1545(a)(3).}

^{# Frequently means occurring one-third to two-thirds of an 8-hour workday (cumulative, not continuous). Occasionally means occurring from very little up to one-third of an 8-hour workday (cumulative, not continuous).}

Author: Daniel Alan Bernath, Attorney at Law

503.639.6666