Summary: 59 year old female with herniated discs in lumbar and cervical spine, damaged right knee and long standing cardiac issues.
Client profile: my client is a 59 year old female with past work as a fast food worker, produce demonstrator, child care worker and retail department manager. Following two motor vehicle accidents, she has damage to her right knee and a surgical order for a knee replacement, herniated discs in her lumbar spine and in her cervical spine with surgical orders for both. She previously had a heart attack and takes medication to control her chest pain and tightness and irregular heart rhythm including a diuretic that causes frequent urination.
Claim background: my client applied for benefits in the summer of 2016 (when she was age 56). She was scheduled for a hearing in the late spring of 2018.
Factors in our favor:
- there is extensive objective evidence of multiple herniated discs and consistent medical records documenting conservative treatment including physical therapy, epidural injections and facet injections
- there is solid evidence of my client’s long standing cardiac issues including prescriptions for diuretic medications
- my client has a long and consistent work history
- my client is morbidly obese and walks with a cane (however cane was not prescribed by a doctor)
Factors not in our favor:
- my client has not had knee surgery because she does not have insurance and cannot afford this surgery
- my client has not had spine surgery and testified that even if she had insurance she would not choose surgery because of the risk
- my client does not take pain medications – she claims that they do not provide relief but her decision to forego pain meds is somewhat inconsistent with her complaints of pain
- my client does not appear to be in significant pain
My strategy: I felt that the medical record in this case was very strong with extensive objective evidence of my client’s badly damaged spine and right knee. I was concerned about my client’s decision to forego pain medications but I felt that the medical record is strong enough to support a finding of “disabled.”
Hearing Report: the judge opened the hearing by introducing herself and the vocational witness. This is a new judge who I do not know but she appeared to be very pleasant. After accepting the exhibit file into evidence the judge asked me for an opening statement which I provided. I emphasized the extensive objective evidence and surgical orders.
The judge then began questioning my client about her past work, before moving on to her various physical impairments and pain. My client testified about her pain and did a good job of associating her back problems with specific limitations in sitting, standing and walking.
My client is a somewhat upbeat person by nature and does not present herself as a person who is in significant pain and I sensed that the judge picked up on this.
When the judge turned the questioning over to me I asked my client about specific activity limitations to show that her capacity to function was severely limited. I asked her about “good days and bad days” and elicited testimony that one to two days per week, she was laid up in a recliner, that she was unable to cook anymore, and that she could not do any housework. My client testified that she lived with relatives who cared for her. I also had her testify about how she had taken pride in being self sufficient and that her current state of dependence was frustrating and depressing.
After testimony was concluded the judge turned to the vocational expert and asked the VE to identify the claimant’s past work. The VE identified one skilled job – that being the retail sales manager.
The judge then asked the following hypothetical questions:
1. Assume an individual limited to sedentary work, with
- no climbing ladders, ropes or scaffolds
- no crawling
- occasional ramps or stairs
- occasional balancing, stooping or kneeling
- frequent exposure to hazards in the workplace
- needs a cane to ambulate
Could the claimant perform past work?
Would the past work provide for transferable skills to sedentary work?
A: yes (but the VE did not identify these transferable skills)
Examples of such sedentary, semi-skilled jobs are:
- auction clerk
- check cashier
- food checker
2. In addition to the limitations set out in hypothetical #1, assume that our person would need to take a one hour break during the day because of pain, restroom breaks or other symptoms.
A: that would preclude all competitive work
The judge then asked me if I had any questions:
3. Assume question #1 but add to it with a limitation that our hypothetical person would be off task 10% of the time.
A: 10% would not preclude work. Anything beyond that would not be consistent with competitive work.
4. If our hypothetical person was off task for 11% of the work day or more how would that impact the job base?
A: that would preclude all competitive work
Conclusions: I think that the judge will approve this case based on my client’s age and medical condition. If not, I think we would have grounds for appeal. First, the judge failed to identify exactly what transferable skills were included in her hypothetical question. Second, the judge did not include any age factor into her question – age 56 is “advanced age” for Social Security purposes and limits how judges can evaluate transferability of skills (see POMS DI 21015.005). Third, I question the accuracy of the VE’s testimony that a 10% off task limitation would allow for the full range of competitive work. 10% of an 8 hour work day is 48 minutes. At a minimum the number of jobs available to workers who need 48 minutes of unscheduled break time would be reduced – it is unreasonable to assume that 48 minutes of break would be ok but 49 minutes would preclude all work.