Summary: 57 year old non-English speaking male claims disability based on post-gunshot physical trauma, PTSD and gastrointestinal distress
Client profile: at alleged onset, my client was a 57 year old male who does not speak more than a few words of English. He had a 7th grade education in his home country. His past work was as a maintenance worker and packer.
Claim background: my client filed for disability benefits in the fall of 2013 alleging an onset date in 2012. We filed our request for hearing in August, 2014 and a hearing was held in an Atlanta area hearing office in March, 2016.
Factors in our favor:
- my client is over age 55
- my client has a “limited” (less than high school) education
- my client does not speak English
- my client’s past work has been unskilled or very low end semi-skilled
- the judge assigned to our case is very reasonable and tends to approve a higher than average number of claims
Factors not in our favor:
- the medical record in this case was somewhat sparse
- there were no medical source statements in the record discussing my client’s capacity for work related activities
My strategy: I felt that we had a reasonable argument that a grid rule might apply here in that my client was over age 55, unable to speak English, had less than a high school education, and no work skills. While it is reasonable to conclude that my client could not perform more than a “light” level of work due to his physical limitations, I wasn’t sure that the judge would feel that the medical record supported that conclusion. In the alternative I was prepared to argue that my client’s functional capacity (which also included non-physical limitations) would leave him unable to reliably perform any type of work. I prepared and submitted a pre-hearing brief (click here to read) setting forth my arguments.
Hearing Report: prior to the hearing I advised the hearing office that my client did not speak English and needed an interpreter. The interpreter was present at the hearing and the judge started the hearing by making a brief preliminary statement setting out the issues.
After swearing in the claimant, interpreter and vocational witness, the judge began asking my client questions about his medical issues. As I expected the judge focused mostly on the physical issues, asking my client about his capacity to use his left hand and arm (the two extremities impacted by the gunshot wounds).
The judge was also concerned about why my client said he could not work now, even though he was shot over 20 years ago. My client responded that his physical capacities have diminished as he has gotten older and that his diabetes and PTSD/depression also negatively impacts him.
After asking a few more questions the judge turned to me and said, “Mr. Ginsberg, I think you have made a compelling argument in your pre-hearing brief that Mr. _____ meets the grid rule at 202.02.” The judge then closed the hearing and asked to “explain to your client what just happened.”
Conclusions: this is a case where my client’s demeanor and testimony were as important or more important than the medical record. The judge used his “judgment” to conclude, reasonably, that my client could not do more than light work and thus was disabled per the grid rule.
