Summary: 62 year old female claiming disability based on fibromyalgia, narcolepsy and gastrointestinal distress arising from weight loss surgery complications
Client profile: 62 year old female
Education: high school diploma + 2 years college
Past work: real estate sales
Claim background: my client filed for disability in April, 2010 alleging a disability onset in early 2008. We subsequently amended the onset to mid-2008 because of substantial earnings during the first part of 2008. A hearing was held in the Atlanta area in November, 2012.
Medical background: my client has a complex medical history and numerous complaints. It appears that many of her issues arise from gastric bypass surgery that was done in the 1980's. Although this surgery was successful in helping my client lose weight, it appear that she experienced many years of nutritional deficits because of the surgery. As time went by, she began experiencing symptoms of fibromyalgia, including myofascial pain, joint pain and fatigue. In addition, she began experiencing episodes of uncontrollable daytime sleepiness as well as chronic diarrhea. In 2009, she was fitted with a PICC line to help with her nutritional needs – this line became infected and in 2010, she underwent surgery to reverse the gastric bypass surgery. Since that time she has regained over 100 lbs. and continues to experience symptoms of fibromyalgia and narcolepsy. My sense is that the physical trauma to my client’s body associated with the weight loss surgery, rapid weight loss, nutritional deficits, PICC line infection, reversal of the bypass surgery and rapid weight gain constitute the constitutional stress often associated with fibromyalgia.
Factors in our favor:
- my client is 62 years old and current receiving Social Security retirement; thus this claim is effectively for a closed period of benefits
- my client has a long and consistent work career with substantial earnings
- my client has regular and consistent treatment with her family physician, a rheumatologist and a sleep disorder physician
- my client needs a walker to get around and needs assistance getting up from a seated position
Factors not in our favor:
- fibromyalgia claims are increasingly difficult to win
- we were unable to get a functional capacity form from the rheumatologist
- the judge in our case is less likely than average to approve cases
My strategy: I felt that our best argument was to focus first on the gastrointestinal symptoms since judges recognize that claimants with chronic diarrhea will be unable to sustain employment. I also felt that if the judge found my client credible in her recitation of symptoms we would have a good chance at winning.
Hearing Report: my client and I entered the hearing room and sat down. The judge introduced himself and the vocational witness, then proceeded with preliminary matters such as accepting the medical record into evidence. The judge then asked me for an opening statement which I provided, noting that the medical record in this case was complex and that my client’s numerous symptoms severely impacted her reliability.
The judge then asked a number of questions to the claimant beginning with “why do you feel that you are unable to rejoin the workforce?” I had previously prepared my client by practicing this type of question and she responded well, although she focused more on the fibromyalgia pain as opposed to gastrointestinal issues as I had suggested.
All in all I felt that my client did a good job describing her symptoms to the judge and that she referenced specific time and distance limitations as opposed to generalities such as “not very much” or “not very far.”
The judge then asked me if I had questions and I followed up with a few about the frequency of her sleep episodes and the diarrhea.
After testimony was over the judge turned to the vocational witness and asked her to classify my client’s past work of real estate sales, which is classified as light and semi-skilled, with transferrable skills to semi-skilled sedentary work such as credit clerk.
The judge then asked the following hypothetical questions:
1. Assume an individual who is the same age as the claimant with the same education and work background. Assume she is limited to sedentary work with the following limitations:
- no use of ramps or stairs
- occasional balancing
- no stooping, kneeling and crawling
- no work around hazardous equipment
- avoid extremes of cold and heat and high humidity
A. Such a person could not perform past work but could perform the duties of a credit clerk
2. Assume that our hypothetical person could not complete 20% of her workday because of a combination of medical symptoms.
A. Such a person could not perform past work or any other work
3. Assume that our hypothetical person would miss at least 1 day of work per week because of her medical symptoms.
A. Such a person could not perform past work or any other work.
The judge then asked me if I had any questions, which I did as the judge’s last 2 questions covered what would have asked.
Conclusions: my sense is that the judge will approve this case as the judge’s first hypothetical did not include any of the symptoms that were testified to and that are in the record. If the judge intended to deny this claim he would have included mild limitations associated with pain, fatigue and diarrhea. He did not in hypothetical #1, so unless he finds my client completely non-credible, he should approve this case.