Summary: 54 year old female with back, ankle and knee pain
Client profile: my client is a 54 year old female with a high school education and 20+ years work as an accounts payable clerk for the same company. This was a closed period claim because my client returned to work for more than 6 months approximately 18 months after her alleged onset date. As of the date of the hearing, my client’s temp assignment had ended and she was not working.
Claim background: my client filed for benefits in June, 2013. A hearing was held in an Atlanta area hearing office in November, 2015
Factors in our favor:.
- the judge in our case is very reasonable and tends to approve a higher than average number of claims
- my client had a long and continuous work history
- this was a closed period case meaning that my client did return to work and she was not asking for on-going benefits
- my client was over age 50 with a high school education
Factors not in our favor:
- the medical record in this case was sparse
- there was no definitive diagnoses
- we had no functional capacity form in the file
- my client stopped work because her company closed and she returned to work (in a temp assignment capacity) because of economic need as opposed to medical improvement
My strategy: I felt that my best angle in this case was to focus on my client’s long work history and her desire to return to work. I would have to rely almost solely on her testimony to document pain.
Hearing Report: Prior to the hearing I submitted a pre-hearing brief emphasizing my client’s work history, her return to work and the closed period nature of this claim and a medical record from a rheumatologist indicating his thought that there was something “systemic” going on with my client.
Before the hearing began, the judge’s assistant came to the waiting area and asked me to meet with the judge for a brief pre-hearing conference outside the presence of my client. Again, this is a judge who I know well and with whom I have a friendly rapport.
In this conversation the judge asked me if I could point to any firm diagnosis, or any medical record that documented medical improvement prior to my client’s return to work. As no such records existed, I explained that my client have visited doctors in the past but no one could provide a diagnosis and that she could not afford to continue visiting doctors that could not offer help. The judge replied that the absence of a firm diagnosis concerned her but that “we will see what the testimony reveals.”
I then returned to the waiting area to retrieve my client. She and I entered the hearing room and greeted the judge. After proceeding through preliminary matters, the judge asked me if I had an opening statement. Because I had written a pre-hearing brief, my opening was brief – again emphasizing my client’s work history and subjective complaints of pain.
The judge then began questioning the claimant about the source of her pain and whether she knew of any specific diagnosis. The judge asked my client to describe the location and severity of her pain – most of the answers indicated pain at a 7 to 9 level on a 10 point scale.
The judge then asked my client whether her condition had improved leading to her return to work. My client responded that her condition had really not improved but that because of financial pressures she had no choice but to return to work, using prescription pain meds to get through the day.
After finishing her questions, the judge asked me if I had any questions. My questions focused on specific capacities – such as sitting, standing, lifting, carrying, etc. My client and I had practiced these questions earlier so I knew what to expect from her. My client testified that she could sit for 15 to 20 minutes, 2 to 3 hours total during a day. She stated she could stand for 20 minutes at a time, and could stand and walk for about an hour during the day. My client testified that she could lift 10 lbs occasionally and 5 lbs. frequently.
After I completed my direct examination the judge turned to the vocational witness and asked the following hypothetical questions:
1. Assume an individual who is the same age as the claimant, with the same education and work experience. Assume further that this individual is limited to light work with the following limitations:
- occasional overhead reaching bilaterally
- occasional pushing and pulling with the lower extremities bilaterally
- frequent handling with the right upper extremity
- frequently balancing
- occasional stooping, kneeling crouching and crawling
- occasional use of ramps
- no use of ladders, ropes or scaffolds
- no concentrated exposure to work hazards like hazardous machinery or unprotected heights
Could such a person perform the claimant’s past relevant work?
Are there other jobs in the regional or national economy that such a person could perform?
A: Yes, examples include unskilled jobs at the light exertional level, including mail clerk, order caller and marker.
2. Assume the same individual as hypothetical #1, but assume that because of pain and other discomfort, this person would be off task up to 20% of the workday. Could such a person perform the claimant’s past work or any other work?
The judge then wished my client the best of luck and closed the hearing.
Conclusions: I think it is unlikely that the judge will approve this case. My sense is that the judge felt sympathetic towards the claimant but the absence of a firm diagnosis and sparse medical records make it difficult for the judge. My hunch is that the judge will conclude that my client stopped working because her company closed and that when she had economic need to return to work she did and that she has the capacity to work despite a moderate level of pain.
My guess is that my client has not been properly diagnosed. I advised her that I think that a favorable decision is not likely and that if her condition continues to deteriorate that she should try to find a doctor who will take a more holistic look at her.