Summary: 49 year old male with chronic leg and back pain, and cognitive deficits from two severe motor vehicle accidents asserting disability for a 12 month (closed period) following his second accident
Client profile: 49 year old male
Education: high school graduate + 3 years of college
Past work: truck driver and substitute teacher
Claim background: my client filed for benefits in July, 2010 following his 2nd motor vehicle accident. He returned to work in August, 2011, thus our claim is for a closed period only. A hearing was held in Atlanta in August, 2012.
Medical background: in 2006, my client was involved in a serious motor vehicle accident when the mini-van he was driving flipped over a highway guardrail, crushing his left leg. My client was in a coma for more than 2 months and his leg had to be reconstructed using rods and metal plates. Following this accident, my client became very depressed because of his physical limitations and because of memory and concentration issues associated with head trauma. My client “self medicated” with alcohol and cocaine. In July, 2010, despondent about the breakup of his marriage and his physical and financial situation, my client attempted to commit suicide by taking an overdose of pills, by cutting his wrists and, finally, by driving his vehicle into a tree. The vehicle accident resulted in further injury to his left leg as well as damage to his lower back and burns on his body. Following this second wreck, m y client was accepted as an inpatient at the Veterans Administration Hospital where he underwent extensive substance abuse counseling as well as physical therapy. During his convalescence, he began taking online college courses and by August, 2011 he had earned enough credits to complete his bachelors degree. He returned to work part time in August, 2011.
Factors in our favor:
- my client’s physical and traumatic brain injury claims arose from a clearly indentifiable event
- my client was motivated to return to work and he did
- Social Security judges often feel comfortable with closed period claims because they do not obligate SSA in an open-ended way
- the medical records in the file document several severe injuries and traumas
Factors not in our favor:
- we would have to get past a drug/alcohol causation problem (although the evidence suggested that my client has been sober since the date of his suicide attempt)
- my client’s capacity to return to school about 7 months after his 2nd vehicle accident suggests a level of functional capacity that might be equivalent to work activity
My strategy: I felt that the record was clear in showing that my client was disabled for the first 6 to 7 months after his accident as he was in a wheelchair and walker. For the time period January through July, 2011, I felt that I needed to show that my client needed 2 to 3 times as much time as a non-injured person to learn and absorb his on-line course material. My client was also prepared to testify that he tried to work as both a substitute teacher and as a telemarketer prior to August, 2011 but he was unable to perform those duties because of pain.
Hearing Report: my client and I entered the hearing room and were greeted by the judge. After proceeding through introductory matters, the judge asked me for an opening statement. I gave her a long and detailed chronology of both my client’s medical treatment and his rehabilitation as well as a detailed description of his determined yet slow progress in earning his on-line degree.
The judge then asked my client some background questions then turned the hearing over to me.
I started by asking my client about his past work. Generally I lead my clients with this type of background testimony but here I asked more open ended questions to help demonstrate the issues with my client’s cognitive capacity. He has poor short term memory and difficulty recalling events from his long term memory in chronological order. As he was testifying about his past work, he repeatedly interrupted himself to correct his recollection. Obviously my client would have no reason to misrepresent his recall about past jobs and I think that his performance during this part of his testimony was relevant.
After going over past work, I decided to take him through a chronology of his injuries, starting with his car accident in 2006. We discussed that accident and how it left him with significant orthopedic limitations as well as cognitive limitation due to traumatic brain injury.
He also talked about depression and how it arose because he could not engage in physical activities such as sports or even playing with his kids, and how the physical and mental health symptoms caused his marriage to fail, eventually leading him to substance abuse and suicide attempts.
We discussed his current state of health and the residual limitations arising from his second vehicle wreck and the additional damage to his left leg.
Next, I turned to his efforts to address the substance abuse issues, complete his education and return to work. My goal was to paint a picture of a man who is trying to improve his life by completing his education and returning to the workforce.
Although my client did enroll in on-line classes in January, 2011, he was unable to perform the duties of either a substitute teacher or a telemarketer. Further, I had my client testify that he needed 2 to 3x as much time to study as a normal student.
After asking a few follow-up questions the judge turned to the vocational witness and asked the following:
Q: First, describe the claimant’s past work:
A: The VE then identified several light and medium unskilled jobs as well as the light semi-skilled jobs of a substitute teacher and the medium, unskilled job as a camp counselor and a truck driver.
The judge then asked the following hypothetical questions:
Q: Assume a hypothetical person who is the same age as the claimant with the same education and work background. Assume further
- he is limited to light work with the following limitations
- he can sit or stand for up to 1 hour at a time before having to change positions
- he can push and pull occasionally
- he can occasionally use his left leg only for foot controls
- no use of ladders, ropes or scaffolds
- occasional ramps or stairs
- occasional stooping, kneeling, crouching, crawling and bending
- needs a mechanical aid to walk on uneven terrain or for extended walking
- he should avoid exposure to vibrations, unprotected heights, & hazardous machinery
- he should be limited to simple, repetitive, routine tasks
- he should not be working in a fast paced environment and should be limited to simple decisions only with few changes in the work environment
Could such a person perform the claimant’s past work?
Q: Are there other jobs in the regional or national economy that such a person could perform?
A: Yes, examples include:
- mail sorter – light, unskilled
- parking lot cashier – light, unskilled
- toll collector – light, unskilled
Q: Assume I find that because of physical and mental impairments, this person would occasionally (up to 1/3 of the day) be unable to sustain attention, concentration or work pace
A: Such a person could not perform any job.
Q: Assume I find that because of physical and mental impairments, I find that this person would occasionally arrive late, leave early and miss as many as 2 days per month?
A: Such a person could not perform any job
Conclusions: this case requires the judge to decide how intrusive my client’s limitations were during the closed period. If she sees his limitations as only those in the first hypothetical, she will deny the claim; otherwise she will grant. In my view a majority of judges would approve this closed period claim – it will be interesting to see what this judge does.