Summary: this case arose from a disability claim filed by a 48 year old man alleging disability based on uncontrolled diabetes, a long ago right leg and knee pain, and depression.
Client profile: 48 year old male
Education: 9th grade, poor reading and writing skills
Past work: commissioned auto salesman, unskilled construction worker
Claim background: my client filed for benefits in November, 2009 alleging disability beginning in October, 2008, when he last worked as an auto salesman. He did attempt to work as a driver for an auto dealership but he could not perform the standing and walking duties of that job.
Medical background: my client was severely injured in a pedestrian accident approximately 30 years ago, when he was struck by a moving vehicle. His right leg and knee were severely damaged and his right leg is approximately 1 ½ inches shorter than his left. He contends that over the past 30 years, the pain in his leg and knee has steadily increased to the point where he can walk no more than 1 block, and he can sit no more than 30 minutes at a time because of pain and stiffness.
My client has also been diagnosed as a diabetic and the medical record reveals that he poorly controlled this condition since his diagnosis around 5 years ago. Approximately 6 months prior to the hearing he was put on insulin. He contends that he frequently experiences blurred vision, numbness and tingling in his hands and that he needs to urinate hourly.
The medical record also contains a psychological consultative evaluation that documents depressive disorder and the psychologist opines that he has a full scale IQ in the mid-60’s and that he would likely have trouble with persistence in completing tasks.
Factors in our favor:
- my client has a long work history
- my client has very little formal education
- the record documents knee issues, poor control of diabetes and depression
- my client is close to 50 years old at onset
Factors not in our favor:
- the medical record suggests that my client was not compliant with doctors orders re controlling his diabetes
- my client contends that his knee pain prevents him from working, but he was able to work for more than 15 years
- my client seems a bit too matter of fact about his limitations in testimony
My strategy: I felt that no one medical issue was enough to prove disability, so I decided to identify the specific limitations that arose from each and argue that in combination, these medical problems would leave my client unable to perform any type of work.
Hearing Report: my client and I entered the hearing room and sat down. The judge introduced himself and the vocational witness. After accepting the medical record into evidence and asking some background questions the judge asked me for an opening statement, which I provided. I then began my direct examination. I started with a discussion of my client’s last attempt to work and the problems he had. We then discussed his work as a car salesman and established that he was terminated because he was not physical active and did not sell enough cars.
I then asked my client to tell the judge about his right leg and knee and we established that he could walk for about a block and that due to stiffness and pain he could only sit for 30 minutes at a time.
We then discussed his diabetes and his claimed complications. He testified that he lived with family members, one of whom was a diabetic and that he tried to adhere to a diabetic diet. We also discussed his need to use the restroom hourly.
Finally we spoke about his depression and frustration at not being able to support himself or engage in activities that he used to do.
The judge asked a few follow-up questions then turned to the vocational expert witness.
The VE identified the claimant’s past work of auto sales as light and skilled, and his past work as a construction worker as very heavy and unskilled. There were some transferrable skills from the auto sales job – namely the ability to comply with procedures, the skills to persuade, and the skills to perform within an organization.
The judge then asked the following hypothetical questions:
I. Assume an individual who is the same age as the claimant with the same education and work background. Assume further that
- he can occasionally climb ramps, stairs, stoop, kneel, crouch and crawl
- he can frequently balance
- he should avoid all workplace hazards
- he can understand and carry out simple instructions only
A. Based on that such a person could not perform past work, but he could perform a variety of light, unskilled jobs including:
- casher II
- ticket taker
- ticket seller
II. Assume the same limitations as in Question I, but further assume:
- he would need to take a 10 minute break every hour worked, requiring him to leave his work station due to pain and complications from his medical condition
A. Based on these limitations, such a person could not perform any work.
The judge asked if I had any questions and I did not. The hearing was then closed.
Conclusions: this case will turn on whether the judge finds my client credible and the evidence persuasive. Given the Hypothetical #1 did not contain address significant pain or diabetic complications the judge will deny this case if he finds my client completely non-credible. I think that there is enough medical evidence to support limitations in excess of what the judge included in Hypothetical #1, therefore I believe that this case will be decided favorably.