This case involved the claim of a 49 year old male with lifelong depression and anger management issues that have been exacerbated by a recent pedestrian accident and broken leg.
Claimant: 49 year old male
Past work: counter person at grocery store, cable TV installer, route driver, landscaper, sales clerk
Education: college graduate and 2 years (incomplete) at a professional school
Hearing info: my client filed for benefits in January, 2010 alleging an onset date in October, 2009 (the date of his pedestrian accident). The hearing was scheduled in November, 2011 before a judge well known to me. This judge is always very polite and professional and he has been fair in his decisions.
Medical background: there was not an extensive medical record, but the documents in the file indicated that my client had a long and consistent history of treatment for depression and anger management. Several suicide and self-harm incidents were noted. There was also a very helpful consultative evaluation from the Social Security examining psychologist that included a number of significant vocational limitations including problems with attendance and reliability, and problems working around the public or in close coordination with others.
Hearing Strategy: I felt that this was a case where the medical record was more important than my client’s testimony. Often claimants with mental illness tend to minimize the outrageousness of some of their behaviors as well as their symptoms. In this case, my client had been arrested and incarcerated several times for verbally and physically attacking his wife and many of his suicidal gestures were made after a fight with his wife. Unfortunately my client’s wife works out of town and could not attend. I felt that my client could describe his depression and anger management issues to a point but that in the final analysis the judge would rely on the medical record to make his decision.
Hearing Report: the judge opened the hearing by introducing himself, the hearing reporter and the vocational witness. He then made a very unusual statement to my client – informing my client that due to the number of cases he was considering, he had looked at the file the previous evening for a few minutes but did not review every document in the file, and that within the next two weeks he would complete his review. The judge further stated that my client should not expect a decision for about 3 months.
I have never seen a judge advise a claimant that the judge had not reviewed the file – the judge did not say this with a tone of anger or frustration at the system but it was unusual to say the least. I suppose that many disability lawyers know that the judges we appear before are overworked but I question whether it was wise to tell a claimant that the judge was not fully prepared.
In any case, I see this circumstance as yet another reason to clearly identify the records that support my client’s case and to help make the judge’s life easier by citing to those records.
The judge then asked me for my opening statement. I explained that my client’s vocational limitations were primarily mental in nature but that he did have problems walking because of the injury to his left leg when he was hit by a car. I specifically referenced the psychological consultative evaluation and the conclusions therein in support of my contention that my client’s capacity for competitive, full time work had been significantly eroded by his condition.
Next the judge turned to my client and reviewed with him every job in the claimant’s Social Security file. My client has an extensive work history and many jobs, most of which he left after being fired or quitting prior to being fired. He also testified about several of the jobs that he was being asked to perform too much work for too little money and that he would not hesitate to express his frustration about the “dead end” nature of these jobs to his bosses or even to customers. I think that the judge was identifying these jobs for the benefit of the vocational witness but as my client described them he did thrown in comments about how he was fired from this job, or that he quit that job.
This job review was more extensive that what I normally see although I don’t know that the thorough review has any special significance. It does highlight the need for claimants to put together a thorough work history, including dates and job descriptions in case a judge does ask.
Next, the judge asked my client about his medications and their side effects. My client noted that he often experienced dizziness because of low blood sugar (he is a diabetic who takes pills, not insulin). My client also testified that one of his medications – Geodon – had been effective in reducing his mood swings. This statement concerned me a little because it implied that his condition had stabilized – I think that what he meant to say was that he remains severely depressed but the swings between manic energy, uncontrolled anger and deep depression but that the depression remained. I tried to rehabilitate this later on in the hearing and I hope that the judge recognized the distinction.
The judge completed his direct examination by asking my client about household chores and his living arrangements. My client testified that he had contact with his wife and children but no one else and that when his wife was out of town for work (she is gone for 2 weeks at a time) he rarely gets out of bed, changes his clothes or bathes.
The judge then turned the questioning over to me.
As noted above, I felt that the strength in this case was in the medical records as opposed to testimony so I did not ask a lot of questions. I asked my client to describe what happened at previous jobs when he was fired and I tried to establish that involuntary job loss was a pattern.
I then asked him to describe his perception of depression – he did not really answer this question but focused mainly on his lack of motivation and his sense that he had wasted his life despite a good education and opportunities for a meaningful career.
I asked my client about his suicide attempts and he testified that when he fought with his wife, he might become so agitated that he would swallow pills or that he would cut himself with his butcher knives. He statement about self-mutilation was somewhat shocking to me but he made these statements very calmly and in a matter of fact tone.
I concluded my direct examination by asking my client about the statement in the psychological consultative report that suggested that he had acted inappropriately towards woman. My client admitted that he had some issues in this regard and stated that “if I had been caught doing some of the things I did, I would be put away for a long time.” I then told the judge that I had no more questions of the claimant.
The judge then turned to the vocational witness and asked him to identify the claimant’s past work. These jobs ranged from light and semi-skilled to heavy and skilled.
The judge then posed the following hypothetical questions:
I. Assume someone with of the claimant’s age with the same education and work background. Assume such a person is limited to light work with the following limitations:
- no ropes, ladders and scaffolds
- no exposure to unprotected heights
- no exposure to dangerous machinery
- job must be low stress
- job must involve simple decision
- job must involve rare contact with supervisors and the general public
- job must involve only occasional, superficial contact with co-workers – such contact must not be needed to get the job done
Q: Could such a person perform the claimant’s past work?
Q: Could such a person perform any other work?
A: Yes, such a person could perform the duties of:
- routing clerk
- mail clerk
II. Assume our hypothetical person could not sustain persistence at tasks or maintain attention and concentration for up to 1/3 of the workday?
A: Such a person could not perform past work or any other job
III. Assume our hypothetical person would likely be absent as many as 3 days per month
A: Such a person could not perform the claimant’s past work or any other work.
The judge then asked me if I had any questions. My question was this:
IV. Let’s return to hypothetical question #1. Let’s add the following limitation:
- our hypothetical person’s occasional, superficial contact with co-workers could not include any contact with female co-workers
A: that would reduce the number of possible jobs like like the light, unskilled jobs I named buy 1/2 or more
Q: is it fair to say that the percentage reduction would depend on the type of job?
The judge then closed the hearing and advised us that he would be issuing a decision as soon as he could
Analysis: this case will turn on the judge’s conclusions about the medical evidence and, to a lesser extent, about how credible he found the claimant. I think that the claimant’s testimony that he quit several his jobs because they were dead end jobs, without hope of promotion and that his employers were demanding hurts his credibility. Social Security disability is about one’s capacity to perform work, not about his willingness to perform rewarding, well paid work.
I also think that my client was not as clear as he could have been when describing the positive impact of the drug Geodon in controlling his mood swings.
On the other hand, the medical record speaks for itself. There is a longstanding history of mental health treatment for depression and judges are used to claimants with mental illness testifying very matter of factly about their bizarre behavior.