Summary: 64 year old female with mild to moderate dementia and a variety of mild to moderate orthopedic problems
Client profile: 64 year old female
Education: college education
Past work: 15+ years as an assistant network engineer for a large telecommunications company
Claim background: my client filed for benefits in December, 2011, alleging an onset date in 2008. A hearing was held in the Atlanta area in February, 2015.
Factors in our favor:
- my client has a long, continuous work history
- my client is over age 55 (approaching advanced age for Social Security purposes)
- dementia is a progressive disease that will likely not get better
- my client comes across and sincere and believable
- the judge in our case is reasonable and compassionate and is always prepared
Factors not in our favor:
- the date last insured in this case was 12/31/2012, meaning that we had to prove that she was disabled prior to that date
- the consultative mental health evaluation was not supportive – it showed very mild impairments
- the medical record describing both the physical and mental health issues describe mild to moderate problems
My strategy: I felt that there were two possible theories of disability here. First, I felt that grid rule 202.06 might apply. This would disable my client as of age 55 if I could show that she could not perform light work and that she had no transferable skills from her previous job. I would also need to show that she could not perform typing or data entry because of pain and limitation of movement in her right hand and wrist. The second argument would be a functional capacity argument – that the combination of mild to moderate dementia taken in combination with the orthopedic limitations would preclude all competitive work.
Hearing Report: my client and I entered the hearing room and were greeted by the judge. The vocational witness was appearing telephonically. After swearing in my client and the VE the judge started the questioning by asking my client why she felt that she was unable to work.
My client responded by discussing the physical ailments, including pain in her shoulder, back and knees, and pain and stiffness in her right hand following what she termed was “unsuccessful” hand surgery.
The judge had clearly read the record carefully and he asked questions about each body part and asked my client about her level of pain and limitation of function.
Next the judge asked questions about memory loss and my client acknowledged that she had a hard time remembering conversations, that she often got lost when driving and that some memories were total blanks to her.
After questioning my client for about 20 minutes, the judge turned to me and asked me if I had discussed with my client changing the onset date. I had assumed that the judge might ask this since the onset date in the file dated back to2008 and any date prior to December 31, 2012 would preserve the Title II SSDI claim.
I suggested a date in 2011 but the judge said that he felt more comfortable with a date in October, 2012 arising from a neurologist’s evaluation that discussed both the cognitive decline as well as the hand, wrist and shoulder pain.
My client and I stepped outside to discuss and after explaining to her what the judge wanted I advised her to accept the suggested amended onset date. My client agreed.
We returned to the hearing room and advised the judge that we would amend our onset date to a date in late 2012 (but prior to the date last insured).
The judge accepted this amendment and then turned to the vocational expert and asked the following question:
Assume an individual who is the same age as the claimant, with the same work background and education. Assume further that this individual:
- is limited to light work with a sit/stand option at 30 minute intervals
- no climbing of ladders, ropes or scaffolds
- occasional use of ramps and stairs
- occasional kneeling, crouching, stooping and crawling
- occasional handling with the right upper extremity
- avoid all work hazards
- avoid unprotected heights
- job should be limited to simple, routine tasks
- work should not be in a fast paced environment
- work should involve few changes in the work environment and minimal decision making
- would be off task up to 10% of the time
Could this person perform the claimant’s past work?
Could this person perform any other work in the regional or national economy?
The judge then asked me if I had any questions. Given the VE’s testimony I wisely said “no thank you.” The judge then closed the hearing.
Conclusions: the judge will decide this case under a functional capacity theory. It appears that he did not feel that my client’s physical limitations were sufficient to support a grid rule decision but it does appear that he feels that the combination of impairments would so impair her capacity to function that she would not be a reliable employee.
The key factor in his hypothetical question was the 10% off task limitation, which reflects the dementia. This limitation represents a reliability factor and will be used to support a favorable decision.