I recently represented a former military officer who was applying for disability based on permanent damage to his heart that occurred when he suffered a massive heart attack. Prior to the heart attack, my client had worked his way up the military chain of command from an enlisted man to the position of major.
During the time he was in the military, my client attended undergraduate college and obtained his masters, and he worked part time, in addition to his regular duties for the military. I made sure to encourage my client testify about his strong work ethic and motivation to succeed as this really enhanced his credibility.
Shortly after receiving a promotion to major, my client suffered a severe heat attack at home. It turns out he had several blockages and the damage to his heart muscle was severe. In fact, a few months after his heart attack he had to undergo surgery for the implantation of a pacemaker.
Because he could not perform his duties for the military my client retired from the service but made two attempts to work – both of these were not successful as he becomes easily fatigued and experiences frequent episodes of pain and side effects from his medications.
About a year and a half after his heart attack my client finally applied for disability, and two years later, his hearing was scheduled.
My client did a good job and the judge will approve his case. A couple of interesting points to note:
First, my client was approved for SSDI even though he receives VA disability and a military retirement pension. Because VA disability and the pension are not earned income, they do not offset his SSDI 1.
Second, my client’s medical records contain a number of subjective comments by the treating cardiologist that most likely reflect that doctor’s desire to emphasize positive results. For example, many of the medical reports contained statements like this:
Patient denies any chest pain, dyspnea (shortness of breath), cough, abdominal pain, fever, dysuria, bleeding, visual symptoms, auditory symptoms, skin rash, edema (swelling), numbness or tingling.
By contrast, in our pre-hearing discussions, my client noted that he needed to sleep between 30 to 90 minutes daily – at least once a day, that he frequently became lightheaded and that he experienced chest pain two to three times per week.
Why is the doctor minimizing the symptoms? I don’t know – perhaps the doctor does this in all his reports to protect himself against litigaiton. In any case, I needed to elicit testimony from my client to help the judge understand the full picture. Fortunately, our judge was receptive to my client’s testimony but another judge might take a different approach.
Third, this was a case where I had to help my client by practicing testimony to show the full extent of his limitations. Like many heart patients, my client takes a sublingual nitroglycerin tablet when he experiences chest pain. He told me (and testified) that he take the nitroglycerin at least three times per week and that it takes about 20 minutes to go into effect.
He did not say, however, that nitroglycerin has some significant side effects, such as severe heartburn and diarrhea. When we explored this issue, it turns out that his “off task” time is closer to an hour, rather than 20 minutes.
My client included this side effect testimony in the hearing and I found it very effective. Like many people, however, he needed some coaching from me to paint a complete picture.
- They would impact his eligibility for SSI if he was not insured for SSDI. ↩