Summary: 55 year old foreign born female with ankle, neck, back and knee pain, along with depression, anxiety and mood disorder.
Client profile: 55 year old female alleging disability beginning when she was age 52
Education: high school + 2 years college in S. Korea. 4 year religious college education in the United States
Past work: day care worker and owner of in-home day care service
Claim background: my client filed for disability benefits in July, 2010 alleging disability beginning in the fall of 2009, when she fell down a small staircase at her home, breaking her right ankle and spraining her left ankle. Since this fall she reports hip pain, back pain, knee pain and frequent headaches. In February, 2011 she was involved in a car accident, causing further injury to her back. My client is a native of S. Korea and she speaks softly and with a very thick accent. It does appear that her reading and writing of English is much better than her spoken English. My client presents as a soft spoken, very depressed individual who claims that she is in constant and chronic pain. The medical record in this case is thin as my client has not had insurance, and she has sought treatment primarily with chiropractors and an accupuncturist (these are considered “alternative medicine” by Social Security and given little weight).
My client lives with a friend and comes across as very sad and dependent. She also tends to get off topic when asked questions and during our pre-hearing conference it was difficult for me to explain to her what issues would be discussed at her hearing.
Factors in our favor:
- my client speaks broken English and she has a very soft speaking voice. It is often difficult to make out what she is saying
- the physical consultative evaluation in this case limited her to sitting, but no walking (the report was silent as to standing). The report also identified a variety of postural limitations such as no frequent bending, stooping, crouching
- my client has been receiving on-going mental health treatment for depression
- my client does not answer questions directly and comes across as a person who has difficulty with focus and attention.
- My client has a long and consistent work history
- The judge in our case is very reasonable and is neither more or less likely to approve claims, although he generally is more comfortable with claims where there is objective medical evidence
Factors not in our favor:
- the medical record in this case was sparse – the best evidence we had was from the consultative evaluations
- my client is not able to answer questions directly which can be frustrating to a questioner
- there was little objective evidence in the form of MRI or CT reports
My strategy: I felt that I had two good arguments for disability in this case. The first was a “grid” argument. I thought that I could argue that the consultative evaluation essentially limited my client to sedentary work and that despite her foreign education, her equivalent educational level was high school graduate or less. Her past work was semi-skilled with no transferable skills. Thus, she would grid out at age 50 under Grid 201.10.
In the alternative, I felt that the combination of my client’s exertional limitations and her mental health limitations have eroded her capacity to work such that she would not be able to reliably sustain any type of competitive work.
I also felt that my client’s cognitive limitations would be apparent when she testified as would her depressed mood.
Hearing Report: my client walks very slowly and with a cane so I made sure to let her enter the hearing room first so the judge could observe her enter. We sat down and the judge went through the preliminary matters with me and asked for an opening. I set out my two theories of disability for him. He then directed me to question my client.
I started off by asking my client about her past work. Even with this simple, direct question, she was not able to offer a concise, clear answer. She noted that she worked as a day care operator then starting talking about her overall body pain.
I next turned to the physical complaints that were reflected in the record. Here, too, my client offered only very vague statements and could not answer specific questions about how long she could sit or stand, or how much she could lift. I think it was fairly apparent after a few minutes of questioning that my client was being truthful in her attempts to answer and that her thought processes were not clear.
After my direct examination of about 15 minutes, the judge asked several follow up questions and he got the same non-responsive answers as I did. For example the judge asked my client about her 2011 car accident and the dollar damage to her car. She replied that insurance covered it and she did not know. The judge asked how much damage was done to the other driver’s car and she responded that the other driver ran away and that the police officer told her that the other driver probably did not have a license. The judge then asked if the other driver’s vehicle was driveable after the accident and she repeated that he ran away after the accident.
The judge then turned to the vocational witness 1 and asked him to identify my client’s past work – it was a nursery school attendant which is light and unskilled.
The judge then asked the VE to assume that the mental health consultative evaluation was accurate in its conclusion that the claimant could perform and complete simple tasks. 2 The VE responded that since a day care worker was semi-skilled, some of the tasks would be more than simple, thus that job would be precluded.
The judge next asked the VE to assume that the physical healthy consultative evaluation was accurate – would the claimant be able to return to her past work. The VE replied that she could not because the physical CE precluded lifting and carrying heavy objects and limited frequent bending, crouching and stooping – all of which would be required by a day care attendant.
The judge then asked if there were any light jobs that would be possible given the limitations set out in the physical CE? The VE said that there were light and unskilled jobs, including:
- cashier II
- ticket seller
- mail clerk
The judge asked me if I had any questions. I asked the VE to assume that the limitations on walking in the CE report also applied to standing. 3 The VE seemed surprised by my question – and I asked him to look at the CE report again. It turned out that the VE misread the report’s statement that “the patient could not be expected to walk short distances and cannot do this several times per day during a typical eight hour workday period.” The VE apparently did not see the “not.” He then asked the judge if he could revise his former answer and he eliminated the mail clerk position and the ticket taker position, and stated that the number of cashier jobs would be reduced.
I then asked him to assume that the limitations on walking also applied to standing. He replied that in such a case no light jobs would be available.
The judge then interjected to say that he saw where I was going with this and would we consider accepting an amended onset date associated with car accident. I conferred with my client and agreed to a January 31, 2011 amended onset date.
Conclusions: although the judge in this case usually insists on objective evidence, he clearly sensed that my client’s capacity for work was greatly reduced. He felt that amending the onset date to a date after the second accident was appropriate and I was happy to recommend this compromise. In other words, the judge applied the grid rules but changed the onset date.
This case was also notable for the error made by the VE in misreading the consultative report. While I am certain the the VE’s mistake was innocent, his answers might have lead to a denial or a much more recent onset date (and a much smaller back benefit check) had I not caught the mistake.
- If you are not familiar with the role of vocational witnesses in Social Security hearings, take a look at my blog post on this subject. ↩
- Click here to review my blog posts explaining how and why Social Security uses consultative evaluations in Social Security cases. ↩
- the physical CE report includes the following medical source statement: I believe the patient made her best effort during this examination. The patient can be expected to sit upwards of one half or more hour and can do several times during typical eight hour workday period. The patient could not be expected to walk short distances and cannot do this several times during typical eight hour workday period. the patient could not lift or carry heavy loads because of pain and could not do this several times during typical eight hour workday period. The patient has postural limitations on bending, stooping, crouching, and so on and cannot perform these frequently. The patient would have not manipulative limitations on reaching, handling, feeling, grasping, and fingering and can perform these frequently. ↩