Summary: 64 year old female with Crohn’s Disease, cervical and lumbar pain and migraine headaches alleging disability based on her inability to get through a day without excessive breaks and due to chronic, unrelenting pain.
Client profile: my client is a 64 year old female with a long and consistent work history as an administrative assistant who left work in 2011 due to Crohn’s Disease, cervical and lumbar pain and migraine headaches.
Claim background: my client filed for benefits in the spring of 2016 alleging an onset date in July, 2015, which is around 4 years after she stopped working. My client was laid off from her job in 2011 and continued to look for work for several years. By July, 2015, however, symptoms from her Crohn’s Disease had progressed to the point where she needed to use the restroom multiple times per day. She had severe abdominal pain and cramping, as well as neck and lower back pain from degenerative disc disease. . In 2017, she was diagnosed with multiple sclerosis.
Factors in our favor:
- my client was over age 60 as of her alleged onset date
- IBS/Crohn’s cases are often approved
- the judge in our case is very reasonable
Factors not in our favor:
the medical record in this case was complicated and it was a little unclear when my client’s various medical conditions became severe
- my client’s date last insured for SSDI was December 31, 2016 meaning that we had to prove that her condition was disabling on or before that date
- there was a 2 year gap between my client’s last work and her alleged onset date
- my client sometimes has a hard time keeping focus
My strategy: I wanted to show the judge that when my client was terminated from her long time job in 2011, she intended to go back to work and actively pursued employment until her medical condition deteriorated in July, 2015. Thereafter I wanted to show that after July, 2015 she found herself fighting the symptoms of Crohn’s Disease (frequent and painful bathroom episodes and abdominal cramping), pain from degenerative disc disease in the neck and lower back, and, more recently, multiple sclerosis. I didn’t want to focus too much on the MS because the MRIs are only starting to show brain lesions and I wanted the judge to focus on what was going on in 2015 and not now (late 2018).
Hearing Report: this hearing was originally scheduled for October, 2018 but my client retained me very late in the process – only about 10 days prior to the hearing. The record was incomplete so I asked for a rescheduled hearing. The judge scheduled our hearing at 8:15AM in mid November, 2018 – my sense is that she made time for us in an effort to get this case tried.
We entered the hearing room and were greeted by the judge. After introducing the vocational expert and hearing reporter, the judge swore in my client and accepted the medical record into evidence.
The judge then asked me for an opening statement and I explained what we were trying to prove and reviewed the medical history. The judge then said that she did not have any questions for the claimant and that I could present my case.
Usually, when a judge does this, it is a good sign because the judge is basically telling me that the record is clear as to the claimant’s limitations. However, I never want to assume anything so I questioned my client in detail about her Crohn’s symptoms – specifically discussing what was going on in 2015. We discussed the frequency of her bathroom breaks, the duration of her bathroom breaks and urgency issues. I had prepared my client for this line of questioning and she did a good job setting out how many times she was using the restroom and how long she was in the ladies room.
I next turned to her neck and back pain and had her explain to the judge that her spine issues were not the result of an accident but arose from wear and tear and congenital issues. She discussed problems sitting for more than 10 to 15 minutes and talked about her need to lie down during the day to take the pressure off her back.
The judge had no questions for the claimant and turned to the vocational witness and asked the VE to describe the claimant’s past work, which was described as a compliance and procurement clerk, which is light and skilled.
The judge then asked the following hypothetical questions:
1. Assume a hypothetical person who is the same age as the claimant with the same education and past work.
Assume further that this individual is limited to sedentary work with the following additional limitations:
- no use of ladders, ropes or scaffolds
- no more than occasional balancing, stooping, crouching or crawling
- no more than occasional need to climb ramps or stairs
- no use of foot controls
- few changes in the workplace, with any changes being introduced slowly
Could such a person perform the claimant’s past work:
VE: no, as past work was skilled
Does the claimant have any transferrable skills to semi-skilled work?
The judge then asked me if I had any questions.
I asked the vocational expert to consider a person limited to sedentary work who need to take an unscheduled break of 10 to 20 minutes every 2 hours. Would that be consistent with competitive work.
The VE responded that a person with this limitation could not sustain competitive work.
I had no more questions and the judge closed the hearing.
Summary: the judge will approve this case. A claimant over age 60 will be considered disabled under the grid rules at 201.06 if she is 55+, limited to sedentary work, is a high school graduate and has a skilled or semi-skilled work background with skills not transferable.
Generally speaking, claimants over age 60 will be considered disabled if they have a significant medical issue and would need to make more than a minimum adjustment to a new job. The judge’s hypothetical considered this theory of disability.
My hypothetical question focused on a functional capacity theory in that it asked the VE to consider excessive breaks from work generally. The VE testified that my client’s need for excessive work breaks would preclude competitive work.
I believe that the judge will approve this case using a grid rule theory but out of an abundance of caution I presented a functional capacity argument as well.