December 14, 2018

Case Study 1

Claimant Profile: 57-year-old female

Past work: photography studio sales rep, owner of housecleaning service

Education: high school graduate

Basis of disability claim: In February 2005, my client had a triple bypass surgery to restore blood flow to her heart. Some serious complications were reported as a result of surgery that resulted in fluid in her lungs. She has subsequently had multiple catheterizations and a stent placement. In addition to ongoing chest pain and pressure, she continues to have sharp pains around the incision site. In addition, she has an unusual esophageal disorder called Barrett’s esophagus which causes gastric disturbance and requires frequent restroom visits.

Analysis: The hearing for this case was held in February 2009. My client’s cardiac issues are well documented and her treating cardiologist was very helpful in completing a very supportive functional capacity evaluation. I felt confident we would have a strong functional capacity argument for proving the disability. I also recognized that the facts of this case might make my client eligible for disability under the grid rules. This turned out to be a strong possibility since we had good medical proof.

Just before the case was about to be called for hearing, the judge’s hearing assistant came out to the waiting area and asked me to come and meet with the judge prior to the hearing. This type of conference is called a “pre-hearing conference” and is more common with state courts.

Although I could think of no negative reason why the judge would want to talk to me, I must admit that this request to meet with the judge brought back memories of getting a request to meet with the principal for some alleged school time transgression!

As soon as I entered the hearing room to meet with the judge and I was greeted warmly, he stated that after looking at the record in this case, it appeared to him that grid rule 202.04 or 202.06 may apply. Grid rule 202.04 provides for a finding of disability in a claimant with a high school education, an unskilled work background, and a light “residual functional capacity.” Grid rule 202.06 provides for disability in a claimant limited to light work (a light “RFC”), with a high school education, skilled or semi-skilled work but no transferrable skills.

The judge explained me that he only intended to ask the claimant just a few questions to confirm her “light work” capacity and then he would turn to the vocational witness. The judge wanted me to prepare for a hearing in which I don’t have to speak much and he showed me the courtesy of letting me know this well in advance – a gesture that was very much appreciated by me.

As soon as this pre-hearing conference got completed, the judge called the claimant in and opened the hearing. The judge informed my client that he and I had conducted a pre-hearing conference and that we had decided that extensive questioning was not required for this case. The judge then asked the claimant to tell him about her cardiac problems and to discuss whether there was any point following her bypass surgery at which she could have returned to full time work.

My client scared me for getting off the track by telling the judge about her frustration with a surgeon’s refusal to address the post-operative fluid build up in her lungs, but she was quick enough to get back on track by explaining about her poor energy level and stress arising from constant chest pain and worry about looming serious heart problems.

After taking testimony the judge turned to the vocational expert and asked him to classify the claimant’s past work. The VE responded that the claimant’s past work was medium and semi-skilled, with no transferrable skills. As an aside, I don’t know that this is entirely accurate as my client’s work in the housekeeping business was as a business owner, which involved running payroll, hiring and firing employees and other managerial functions. I think that the business ownership functions do generate transferrable skills, but the VE in this case either overlooked or misunderstood the nature of my client’s past work.

The judge then posed a hypothetical question:

Q: Assume I find that our hypothetical person is “closely approaching advanced age” (age 55-60) and is limited to a light RFC. I am going to assume that she could not perform past work because that work was at the medium exertional level.

A: That is correct – past work would be excluded by the light RFC

Q: Are there any transferrable skills to light work?

A: No.

Q: if that is the case, it appears to me that grid rule 202.06 applies based on the claimant’s age, education and past work.

A: that is how I see it

The judge then turned to my client and stated that based on what he is seeing in the file, she qualifies for disability but that he reserved the right to reconvene the hearing if he discovered something in the record that was not currently presented.

The judge then turns to me in case I had any additional arguments to make. I responded by stating that I did want to put on the record that in addition to her cardiac problems, my client had a serious gastrointestinal problem that caused both reflux and chronic diarrhea, thereby further complicating her medical condition.

Generally I would not say anything if a judge finds in favor of my client using a grid rule, but I wanted this gastrointestinal issue to be on the record with a very remote chance that the judge did not follow carefully through on his grid analysis report. I have no reason to think that this judge would do that but I have an affirmative obligation to protect my client’s interest.

Summary: Finally this case was a winner under either a grid rule theory or under a functional capacity theory. My client also had favoring characteristics of a good case – she was in her late 50’s at the time of onset, she had a long and productive work history, she had a medical problem with significant documentation and she had unwavering support from a treating physician.