This case involved the claim of a 46 year old female with bi-polar disorder as well as depression and abdominal numbness arising from a poorly done gastric bypass surgery and subsequent liposuction.
Claimant: 46 year old female
Past work: customer service rep for a law firm, home health care nursing assistant, telephone answering operator
Education: high school graduate + 2 years of college (but no degree)
Hearing info: my client filed for disability benefits in November, 2009, alleging an onset date of January 5, 2009. Her earnings record reflects that she earned around $6,500 during the second and third quarter of 2009 and she acknowledges that she worked as a customer service rep for a law firm from June until October, 2009. Her date last insured for Title II SSDI benefits is March 31, 2009, meaning that we have to prove that her June-October, 2009 work was not “substantial.” If the judge finds her disabled after March 31, 2009, she would not be insured for Title II benefits.
Background: my client alleges disability based on bi-polar disorder, along with depression and pain associated with unsuccessful gastric bypass surgery. She contends that she cannot eat solid food and that she frequently vomits. She also has a history of abusive relationships and she and her 5 year old child currently reside with her sister.
Factors in our favor include:
- very supportive psychological consultative evaluation
- record of on-going psychiatric treatment
- no suggestion of malingering or drug seeking behavior
Factors not in our favor include:
- very difficult judge – the judge assigned to this case rarely, if ever, approves disability cases.
- client has a difficult time expressing herself and may not appear fully credible
- we were unable to get any of the treating mental health professionals to complete a functional capacity form
Hearing strategy: this is a case that 75% of the judges I regularly appear before would approve. Unfortunately, my client drew the judge least likely to approve any disability case. I felt like our best strategy would be to have my client describe her symptoms of depression as well as her digestive issues and hope for the best.
Hearing report: the judge opened the hearing by introducing herself and the independent vocational witness. She accepted the medical record into evidence and asked me for an opening statement. I set out my argument that my client’s functional capacity for work has been so reduced by her bi-polar symptoms along with the residual effects of her failed gastric bypass surgery that she would not be a reliable employee.
The judge then proceeded to ask my client about her symptoms and how her life was affected. The judge specifically asked about her activities of daily living and how she was able to care for her 5 year old child. The judge seemed a little frustrated that my client could not remember the exact dates of her past work.
I then asked several follow-up questions, focusing on my client’s allegations of visual and audio hallucinations, her thoughts of suicide, poor temper control and her nausea and vomiting.
After my direct examination the judge turned to the vocational witness and asked for a description of my client’s past work. She then asked the following hypothetical question:
Assume an individual the same age as the claimant with the same work and educational background. Assume further
- she has no exertional limitations
- she is limited to light work with a sit/stand option
- she should avoid temperature extremes
- she would be limited to simple work
- she would be limited to only occasional interaction with the public, co-workers or supervisors
Q: Could such a person perform the claimant’s past work?
Answer: No because her past work involved more than occasional interaction with others.
Q: Could such a person perform any other work in the regional or national economy?
A: Yes. She could be a ticket taker, a storage facility rental clerk or a house sitter
The judge then asked me if I had any questions:
Q: would your answer change if our hypothetical person needed to take unscheduled breaks 3 to 6 times in a work day?
A: such a person could not perform any type of work because most employers allow no more than 1 or 2 unscheduled breaks per day.
The judge then closed the hearing, but gave me time to submit evidence that my client’s work after March 31, 2009 was not substantial.
Analysis/summary: based on the judge’s single hypothetical question to the vocational witness, I do not expect that she will approve this case. This is a case that would be approved by 75% of judges but my client will not be approved because she was unlucky and drew an unreasonable judge.