December 14, 2018

Case Study 2

Congestive Heart Failure and Social Security Disability

Claimant: 51 year old male

Past Work: many manual labor jobs including warehouse work, order picker, truck loading and unloading

Education: high school graduate

Background facts: my client last worked in October, 2007 when his last temp labor job ended. He was living in another state where work was scarce so he came to Atlanta to visit his adult children and to look for work here. He eventually returned home but was unable to find work. In late January, he began to experience chest pain and shortness of breath. His condition worsened and in late February, 2008 he went to the emergency room with extreme pain and breathing issues.

My client was admitted to the hospital with congestive heart failure. His heart muscle was damaged and a pacemaker was installed. Other medical problems noted at the time were decreased kidney function (kidneys operating at approx. 40%), COPD, sleep apnea, hypertension and diabetes.

My client believes that many of his medical problems arise from his diabetes, which was not diagnosed until he was 40 years old.

In late 2008, he moved to Atlanta to be closer to his children and grandchildren. Since that time he has been hospitalized at least twice for chest pain and shortness of breath. During the last two hospitalizations cardiac functioning tests revealed an ejection fraction of 25% or less.

While he has stabilized, he can withstand very little physical exertion – even a flight of stairs will leave him out of breath.

This case was referred to me by a disability law firm in Chicago. My client had retained the Chicago firm when he was living there and they asked me to assume representation and handle the hearing after my client moved to Atlanta.

Hearing info and case theory: the hearing was scheduled in Atlanta in September, 2009 before a very reasonable judge. In reviewing the file, I felt that we had a good case because:

  • there was objective evidence of a significant medical problem (congestive heart failure)
  • test results (the ejection fraction at 30% of below) had not changed from the initial February, 2008 hospitalization to the present). The ejection fraction measures how much blood the heart is pumping. A normal ejection fraction is 55 – 75%. The Social Security listings at 4.02 provide that an ejection fraction of less than 30% is disabling.
  • he had an excellent, long-standing work history
  • one of the medicines prescribed to my client is Lasix, which is a diuretic that helps flush water out of the system. Patients with decreased heart function and kidney issues are at risk for retaining water, which leads to swelling and additional strain on the heart and kidneys. When on Lasix, my client has to urinate every 20 to 30 minutes, which obviously creates a potential issue at entry level, manual labor jobs

There were also a few factors that worked against us:

  • my client did not have much medical treatment between February and March 2008 through April, 2009 when he was seen at Atlanta’s Grady Hospital
  • my client’s condition had stabilized to the point where he was feeling better – his hypertension was under control, he had adjusted his diet and he had learned how to manage his activities such that he was not in constant pain or discomfort
  • my client looked healthy and robust – looking at him you would not have any idea that he was not healthy. He also has a positive, forward-looking personality which could be misleading given his underlying medical issues

I felt that we had a decent argument that he met the listing at 4.02, which reads:

4.02 Chronic heart failure while on a regimen of prescribed treatment, with symptoms and signs described in 4.00D2. The required level of severity for this impairment is met when the requirements in both A and B are satisfied.

A. Medically documented presence of one of the following:

1. Systolic failure (see 4.00D1a(i)), with left ventricular end diastolic dimensions greater than 6.0 cm or ejection fraction of 30 percent or less during a period of stability (not during an episode of acute heart failure); or

2. Diastolic failure (see 4.00D1a(ii)), with left ventricular posterior wall plus septal thickness totaling 2.5 cm or greater on imaging, with an enlarged left atrium greater than or equal to 4.5 cm, with normal or elevated ejection fraction during a period of stability (not during an episode of acute heart failure);

AND

B. Resulting in one of the following:

1. Persistent symptoms of heart failure which very seriously limit the ability to independently initiate, sustain, or complete activities of daily living in an individual for whom an MC, preferably one experienced in the care of patients with cardiovascular disease, has concluded that the performance of an exercise test would present a significant risk to the individual; or

2. Three or more separate episodes of acute congestive heart failure within a consecutive 12 month period (see 4.00A3e), with evidence of fluid retention (see 4.00D2b (ii)) from clinical and imaging assessments at the time of the episodes, requiring acute extended physician intervention such as hospitalization or emergency room treatment for 12 hours or more, separated by periods of stabilization (see 4.00D4c); or

3. Inability to perform on an exercise tolerance test at a workload equivalent to 5 METs or less due to:

a. Dyspnea, fatigue, palpitations, or chest discomfort; or

b. Three or more consecutive premature ventricular contractions (ventricular tachycardia), or increasing frequency of ventricular ectopy with at least 6 premature ventricular contractions per minute; or

c. Decrease of 10 mm Hg or more in systolic pressure below the baseline systolic blood pressure or the preceding systolic pressure measured during exercise (see 4.00D4d) due to left ventricular dysfunction, despite an increase in workload; or

d. Signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental confusion.

In the alternative, I felt that we had a good argument under the grid rules and under a reduced functional capacity for work theory.

Course of Hearing: as noted above, I was brought into this case by a Chicago law firm that had contacted me about six weeks prior to the hearing. When I received the file, there was an outstanding request to Grady Hospital for my client’s 2009 medical records. Grady, as you may know is the public hospital in Atlanta and getting records from Grady can be difficult. Fortunately we were able to call in a couple of favors and the day before the hearing I received the Grady records covering admissions in April and in August. I brought these records with me to the hearing.

I met my client at the downtown Atlanta hearing office. Prior to the hearing we discussed how he should answer the question – “why can’t you perform a simple, unskilled, entry-level job?” As discussed above, my client does not really think of himself as “disabled” so I had to make sure that he had a solid answer. We decided to focus on the side effects of the Lasix (frequent urination) and the extreme fatigue he experiences after even minimal exertion.

When it was time for our case to be heard, the hearing assistant brought us back to the hearing room where the judge was waiting for us. I had submitted the 2009 Grady records in paper form prior to the hearing and the judge had reviewed these records.

The judge introduced himself, the hearing assistant and the vocational witness, then swore in my client. He then asked me if there was any medical evidence outstanding and if I had any objections to the evidence in the file (I did not).

He then asked me to make an opening statement, which I did, pointing out the claimant’s long work history, his chronic heart issues, kidney problems and need to use the restroom. I laid out three theories of disability – a listing argument, a functional capacity argument and a grid argument. My client and I had also agreed that we would amend the onset date from September 2007 (when he stopped working) to January 31, 2008 (when he first noted significant chest pain and shortness of breath).

I felt that a change to the onset date was appropriate because my client stopped work in September, 2007 due to a layoff, not medical issues. The judge would have made this change anyway and by suggesting it ourselves, we enhanced my client’s credibility.

After my opening, the judge asked my client a few questions about his past work and about his chest pain and shortness of breath.

The judge then turned to the Vocational Witness to ask about past work. At this point, I knew that I had won because the judge saw no need in developing the record with questions from me.

The judge asked the vocational witness to classify my client’s past work – it was heavy and semi-skilled as a loader/unloader and order picker. The judge then asked if there were any transferrable skills to sedentary work – the VE said “no.”

The judge then turned to my client and me and said that he was going to award benefits based on Grid Rule 201.14 – a 50 year old high school graduate with a semi-skilled work background and no transferrable skills. The judge also noted to my client that his long and consistent work background served as a source of credibility – the judge concluded “I know that if you could work you undoubtedly would work.”

Summary: this is a case that could have been decided based on the listings (because of the low ejection fraction over a period of years), based on a reduced functional capacity, or based on the grid rules. The judge chose the grid rule argument. Although the medical evidence was not extensive (a hospitalization in February, 2008 and ER visits/admissions in April, 2009 and August, 2009, the judge found my client extremely credible because of his work history.