Summary: 44 year old female with a 10th grade education, past work as an insurance inspector and complaints of pain associated with fibromyalgia and hypothyroidism
Client profile: 44 year old female
Education: 10th grade + attendance at community college for private investigation training
Past work: on-site inspections for insurance underwriters, commercial truck driver, office manager and cashier
Claim background: my client filed her application for benefits in August, 2010 alleging an onset date for her disability in January, 2008. My client’s SSDI insurance coverage ran out in September, 2011. A hearing was held in an Atlanta area hearing office in March, 2012.
Medical background: in 2006 my client underwent surgery to remove her thyroid gland which had swollen and was not functioning properly. Thereafter, she gained a significant amount of weight and began experiencing symptoms of anxiety, poor concentration (“fibro fog”), abdominal discomfort, difficulty swallowing and multiple aches and pains throughout her body. An MRI in 2008 revealed degenerative disc disease in her spine and a bulging lumbar disc.
She has received continuous treatment from her family doctor through the present time. A sleep study revealed severe sleep apnea. Her treating orthopedist completed a functional capacity form at my request that identified multiple work activity limitations.
Factors in our favor:
- my client has a solid work history
- my client has continuously sought medical treatment from multiple physicians, who have found her credible
- we have a very supportive functional capacity form from a treating orthopedist
- there are objective precipitating factors to the fibromyalgia diagnosis – specifically the surgery to remove the thyroid and post-surgical hypothyroidism, and the MRI report showing degenerative changes and a bulging disc
- there was a consultative psychological evaluation in the record that identified a fairly significant vocational issue in the form of problems my client would likely have with pace of work.
- the judge in our case is more likely than average to approve disability claims (although I did not know who the judge was due to SSA’s new policy of not identifying judges on hearing notices).
Factors not in our favor:
- my client is a younger individual
- there is one medical report from mid-2008 which describes my client’s complaints as “somatic” (which means that the complaints are out of proportion to the objective medical evidence)
- my client is somewhat pessimistic about her health and future prospects and I was concerned that the judge might decide that my client has given up and is not fighting the idea of disability
My strategy: I felt that my client would need to testify credibly to increase our chances at winning. She and I met the week before the hearing and we spent over an hour practicing testimony. I explained to her that there was a big difference between sounding angry and frustrated about her health problems, and sounding defeated and “invested” in being disabled.
I explained to her that we had the burden of proof to show that she did not have the capacity to work; the Social Security Administration did not have to prove that she was not disabled.
I sensed that my client was extremely frustrated by the decline in her health. At one point she explained that her surgeon had assured her that after the thyroid removal and medication adjustment she would feel better, but, in fact, she has never felt “like herself” since that surgery.
After practicing testimony in my office I felt that my client was better prepared to present herself in a manner that would help our chances.
Hearing Report: my client and I entered the hearing room and were greeted by the judge. The judge then introduced the vocational expert witness and other housekeeping matters such as accepting evidence into record. She then asked me for a brief opening which I gave. The judge then asked me to proceed with my direct examination.
I began by asking my client about her past work and exactly what she did and when she worked. The judge noted that my client’s earnings record showed earnings after the alleged onset date in January, 2008 and my client explained that after she left her insurance inspection job, she and her husband started a trucking company that showed earnings in her name. She testified that her involvement with the company began to decrease significantly in 2008 and early 2009. This point became relevant later in the hearing as we will see.
I then turned to the medical evidence and had my client testify about her thyroid surgery and her poor post-surgical results. As we practiced, she testified that her thyroid had become dangerously enlarged and non-fuctioning and that her surgeon had reassured her that post-surgery hormone supplementation would restore her energy level and normal metabolism. Instead, the hormone balance has never been achieved and she has ballooned to well over 300 lbs. despite restricted caloric intake.
My client testified that she experiences severe joint pain, digestive upset and “fibro fog” and that she is rarely comfortable during the day. Her sleep apnea precludes restful sleep and she spends a good part of her day in a recliner. She also testified about chronic low back pain, made worse by her weight gain.
I then asked her about specific limitations involving sitting, standing, walking, lifting and carrying.
After I completed my questioning the judge asked a few followup questions and then called the claimant’s husband to testify. The judge asked him about my client’s work at their trucking company and when she last performed any duties. He testified that she last accompanied him on a cross country run in December, 2009.
The judge then turned to the vocational expert witness. The VE identified my client’s past work as:
- property insurance inspector – light, skilled
- truck deliverer – light, semi-skilled
- office manager – sedentary, skilled
- cashier – light, semi-skilled
The judge then posed the following hypothetical questions, all assuming an individual who is the same age as the claimant with the same education and work background:
- can lift 20 lbs. occasionally, 10 lbs. frequently
- can sit for 6 out of 8 hours during the day
- can stand and walk for 2 out of 8 hours during the day
- unlimited capacity to push and pull
- no ladders, ropes or scaffolds
- occasional stooping, kneeling, crouching and crawling
Q: Can such a person perform the claimant’s past work?
A: such a person could perform the duties of office manager or cashier
- can walk for 30 minutes, but no more than 15 minutes at any one time
- can stand for 15 minutes at a time
- can stand and walk for 2 hours total during an 8 hour day
- can sit for 6 out of 8 hours
- needs to shift position at will between sitting, standing and walking
- needs to lie down during the day because of pain occasionally
- can lift 20 lbs. occasionally, but no weight frequently
- occasional handling finger
- pushing, pulling, reaching are unaffected
- occasional bending and reaching
- no squatting, crawling, climbing, stooping or crouching
- no work at unprotected heights
- no exposure to moving machinery
- no exposure to temperature change
- no driving
- no exposure to dust, fumes or gasses
- likely to miss work 3x per month due to symptoms
A: such a person could not perform past work or any other work
The judge then turned to me and said that she felt comfortable approving this case but that she felt that the onset date ought to be as of the date that my client last worked in the trucking business. My client and I stepped outside and we agreed to amend the onset date to a date in December, 2009 when my client last worked in the trucking business. The judge then closed the hearing.
Conclusions: I was pleased with the favorable decision in this case. The evidence was compelling but not overwhelming and a different judge might have denied this claim.