I recently tried a grid rule case that resulted in an unusual exchange between the judge and myself and showed why claimants and their attorneys should not assume anything about their judge’s thinking.
My case involved a 63 year old man with an 11th grade education and no work history. I say “no work” history because my client last worked 14 years ago and then only for a few months. I was prepared to argue that this tiny amount of work is equivalent to no work, but the judge accepted my assumption without argument 1
I also had very little in the way of medical evidence other than three things:
- my client was infected with the HIV virus 8 years ago. He has not developed AIDS but he has a very low level of energy and complains of fatigue
- my client is significantly underweight and looks frail and older than his 63 years
- my client was infected with tuberculosis over 20 years ago, went through treatment, and claims that his energy level and fatigue issue began at that point
When considering how to argue my case I felt that the listing argument would not work because Listings 14.07 and 14.08 require a significant level of complications from HIV that my client does not have.
A functional capacity argument could certainly work here, but I had no functional capacity assessment from a treating doctor and I would have to rely solely on my client’s testimony and the judge’s willingness to extrapolate work activity limitations.
I concluded that my best argument here would be to reference the medical vocational guidelines (the grid rules). Specifically I saw that grid rules 203.01 or 203.02 could very well apply. These rules require a finding of disabled for a claimant who can perform medium level work 2 Another way to look at this – would the judge find that a frail, underweight, 63 year old could perform heavy (frequent lifting of 50 lbs., and occasional lifting of 100 lbs.).
On the day and time of our court date, the judge called the hearing to order, accepted the exhibit file into evidence and dispensed with preliminary matters. He asked me for an opening statement, during which I asserted my argument that my client met the grid at 203.02 – he was age 60-64, had a limited education and no previous work.
As I made this argument the judge stopped me and exclaimed “no one meets the grids at medium!” I replied that with all due respect, there were two instances where a claimant could grid at medium. The judge stopped the hearing and reviewed his computer for a few minutes. He looked at me and said “counselor, thank you for bringing this to my attention. I had no idea that anyone could grid out at medium but it appears that they can.”
The judge went on to explain that he had analyzed this case as a functional capacity case but that the grid argument was clearly applicable. After taking testimony he noted to me that even without evidence addressing my client’s lifting capacity, he was prepared to go on record with an assumption that the vast majority of 63 year old men – and this one in particular – could not be expected to lift 50 lbs. all day long. He was therefore going to approve my client’s case.
I think that there are two lessons we can draw from this case.
First, we should not assume that even a well prepared judge will know our case as well as you (the claimant) or your attorney. The judge in this case is a very good judge and he always prepares well. But even this experienced judge was proceeding under an incorrect assumption about the grid rules. Had I not spotted the applicable law our road to a favorable decision might not have been so clear.
Second, not every case file is going to contain thorough and complete medical records and an evaluation by a treating doctor of a claimant’s physical or mental capacity to work. Sometimes it will be necessary to argue that certain limitations logically flow from the medical records that are present as well as from the claimant’s testimony.
Fortunately, in this case, the judge analyzed the record properly and fairly and a deserving claimant will receive needed benefits.
- It might have been a different situation if, for example, my client had four solid years of work eleven years ago – at some point the threshold between inconsequential work and work that counts will be crossed. ↩
- Medium level work calls for standing and walking 6 out of 8 hours during a work day and lifting 25 lbs. frequently and 50 lbs. occasionally. ↩