This case involved the claim of a 53 year old woman with a long history of back pain. She had a long and consistent work history and the MRI reports showed significant disk involvement
Claimant: 53 year old female
Past work: escrow officer in real estate office; real estate closer, apartment property manager, customer service representative
Education: 11th grade (no G.E.D.)
Hearing info: my client applied for benefits in October, 2008, alleging an onset date in May, 2008. She did attempt to work from August, 2009 through December, 2009 as a leasing agent at an apartment complex, but had to quit because she could not handle the walking or stair climbing. The hearing in this case was held in November, 2011.
Background: my client alleges disability beginning in May, 2008, when he left a telephone customer service job she had held for about 7 months. She reports that she has had back pain for close to 20 years. She is not exactly sure of the cause, although she does remember several hard falls in the 1990’s. Her medical reports show a herniated disk in the cervical spine and degenerative changes in the lumbar spine.
She attempted to undergo physical therapy but it was too painful. She attempted to pursue relief with epidural steroid injections but had a bad reaction to the injection and ended up in the hospital for over a week. Her orthopedist has suggested that she consider surgery but she is reluctant to do so because her doctor cannot assure her that she will be in less pain after surgery.
She contends that at least once a month, her back freezes up and she is bedridden. Usually the episode will last 3 or 4 days but on a few occasions she has been bedridden for several weeks.
Hearing Strategy: this case was scheduled to be heard by a judge I know to be very reasonable and compassionate. I felt that we had a good case because:
- there was objective evidence of damage to the spine (the herniated disc)
- my client had made multiple attempts to return to work
- she was over age 50
- she had a long, productive working career
- she had been compliant with her medical treatment
- she has been prescribed strong pain medications (hydrocodone and oxycontin)
I was a little concerned with the following issues:
- my client had not seen her orthopedist in almost 2 years
- she had reported to her doctor (this was in the record) that she had decided that staying home was a better treatment option than steriod injections and physical therapy
I felt that my goal in this case was to establish my client as a sincere and credible witness as the medical evidence would speak for itself.
Hearing Report: the judge called the case to order and introduced himself, the hearing reporter and the vocational witness. He explained to my client that this was her chance to explain why her medical problems left her unable to work. He then asked some preliminary questions about my client’s past jobs, then he turned the questioning over to me.
I began my questioning by asking my client about her unsuccessful work attempt as a residential leasing agent, and about her last job as a telephone customer service representative. She testified that she could not perform the leasing agent job because of the standing and walking, and she could not perform the customer service job because of the sitting.
I then asked her to explain how she hurt her back and hip. She stated that she had fallen several times in the 1990’s and 2000’s and that over the years her pain became more steady and more intense. I had her explain to the judge that at least once a month for at least 4 or 5 days she was bedridden and that at least twice a year, she would be bedridden for weeks.
I then asked her about her capacity to:
- sit (no more than 20 minutes at a time, and 2 to 3 hours total during the day)
- stand (no more than 10 minutes at a time and no more than 1 to 2 hours total during the day)
- walk (no more than 10 minutes at a time, and about an hour a day total)
She testified that she could perform these functions but only for a few minutes and for less than 8 hours total during a day.
After about 20 minutes of questions, I felt that I had asked all that I could and that the judge would either believe her or not, so I rested my case. The judge asked a couple of questions for clarification then he turned to the vocational witness:
The vocational witness classified my client’s past work. The judge then asked the following hypothetical question:
Assume an individual who is the same age as the claimant with the same education and work background
- she is limited to sedentary work
- she can sit for 20 minutes at a time maximum and can sit for no more than 4 hours in an 8 hour day
- she can stand and walk for no more than 10 minutes at a time and can stand and walk for no more than 2 hours in an 8 hour day
Q: could such a person return to the claimant’s past work?
A: No, because 6 hours is not considered full time work.
Q: Are there any other jobs such a person could do in the regional or national economy?
A: No, because such an individual would not be performing full time work.
The judge then turned to the claimant and advised her that he was going to find her disabled and that she should expect a written decision in 4 to 6 weeks.
Analysis/Summary: as I expected, this case turned on the question of whether my client was credible in the eyes of the judge. When the judge announced that he would approve this claim he noted that he found the claimant credible in part because she had tried to work repeatedly despite her damaged back and had not been successful. This is case where unsuccessful work attempts convinced a judge that the claimant was fighting to avoid disability but that her body simply would not let her work. This is also a case where I recognized that I did not need to drag out the questioning once I had established that my client was a credible witness. I could have asked more questions about her back pain but doing so would have been redundant and could have run the risk of upsetting the judge.
