This case involved the claim of a 34 year old man who was born 10 weeks premature with a congenital heart defect (requiring surgery at age 6 months), who has an IQ of 79, scoliosis, shortness of breath and who exhibits inappropriate social behavior.
Claimant: 34 year old male
Past work: production assistant at Goodwill, cashier at various grocery stores and convenience stores, pizza delivery
Education: 12th grade (special education)
Hearing info: my client filed for benefits in February, 2009, alleging an onset date in August, 2008, which is when he was fired from his last cashiering job. I noted that he had worked at Goodwill for about 9 months in 2008 and 2009 but I was prepared to argue that this job should be considered “structured” work rather than “competitive” work and thus not “substantial activity” for Social Security purposes.
Background: my client alleges disability based on limitations that arise from his limited intellectual functioning, along with physical limitations arising from his shortness of breath, back pain and scoliosis. We were also alleging that he lacked the capacity to stay on task and that he was not receptive to social cues and thus often acted in an inappropriate manner. His mother, who is his primary caretaker noted to me that in the past my client had not been deemed disabled enough for various state programs for the mentally retarded, but he does not have the capacity to mainstream with others in a non-sheltered setting. She further noted that he had obtained and lost numerous entry level jobs at stores and businesses and that he had stopped looking because of the frustration and anguish that arose when he would inevitably lose his job.
Hearing Strategy: this case was scheduled to be heard by a judge who has a higher than average rate of claim approvals. I had spoken at length to my client’s mother and she very clearly and thoroughly explained the problems her son had in keeping a job and in interacting with others. At the same time I felt that my client would not be a good witness. He is very good natured but not really aware of how he appears to others. He is also very articulate for a person with a relatively low IQ and I felt that he would be likely to minimize his limitations in testimony.
Hearing Report: the judge opened the hearing by introducing himself, the hearing reporter and the vocational expert witness. This particular judge always presents an extensive introduction to claimants in which he explains the history of the claim, the burdens of proof and the procedural status of the claim. Most of my clients of normal intellectual capacity do not understand this detailed opening statement and I knew that this particular client would have no idea what the judge was talking about. Prior to the hearing I told him to expect a 10 minute speech from the judge that contained a lot of big words, and that he should just nod his head and not worry about what was being said.
After giving his introduction the judge asked me for my opening statement. I stated that we were asserting disability based on my client’s limited intellectual functioning, his inappropriate social behavior (he had been fired from several jobs after repeatedly asking female employees on dates even after they had asked him to stop calling), his poor impulse control, his inability to maintain a schedule and his physical issues – shortness of breath and back pain. I noted to the judge that my client’s mother was in the waiting area and that she would likely be a better resource than the claimant to discuss his mental limitations.
The judge then asked me to proceed with questions to the claimant about his physical limitations, and that we would bring the mother in to discuss the mental and behavioral issues.
I then proceeded to ask my client about his physical problems. He explained that he had back pain and was frequently short of breath even after walking very short distances. I specifically asked my client questions about his capacity to sit, stand, walk, climb, bend, etc. because I know that this judge will often incorporate these stated capacities into his vocational expert hypothetical.
I don’t know that my client fully understood the value of offering an accurate but conservative estimate of his physical capacities. I had tried to explain in a pre-hearing meeting that he should describe his physical capabilities in terms of what he could do in an average day without pushing himself to the limit. He did not really understand the nuance of what I was trying to say so I advised him to tell the truth as best he could, figuring that the mental limitations would likely be our best argument.
He did testify as to physical limitations that would limit him to light work (up to 2 hours standing and walking, lifting 10 lbs.) but not much more than that.
We then recessed so my client’s mother could come in to testify. The judge seemed uncomfortable with having my client testify during his mother’s testimony, so we asked the claimant to stay outside. I would note that many judges would not have this much consideration for the dignity of any claimant, even one who probably did not fully understand some of the concepts we were going to discuss.
After being sworn, my client’s mother offered testimony similar to what which she had discussed with me in our pre-hearing meeting. She explained that her son was good natured and wanted to please, but that he simply did not have the capacity to structure his own day, to show up at work on time, or to act appropriately with co-workers and the public. She recounted several instances where he got fired for poor performance, for losing interest in his job tasks and for bothering co-workers. She stated that he and “worn out his welcome” at most of the grocery stores and other local businesses that hired entry level employees and that he had become depressed at his inability to find and keep a job, even though he was not able to associate his actions with their consequences.
She noted that he did not have any friends, nor did he participate in any peer group and that he spent his days sitting in the house watching television. She stated that he could not stay on task and would often procrastinate at doing basic household tasks.
The judge asked a couple of follow-up questions, then he turned to the vocational witness and asked her to identify my client’s past work:
- telemarketer – sedentary, low-end semi-skilled
- food deliverer – medium, unskilled
- cashier/checker – light, low-end semi-skilled
- cashier – light, unskilled
The judge then asked the following hypothetical question:
- Assume an individual between the ages of 31 and 34. He has a high school degree but attended special education classes.
- he can lift 10 lbs. frequently
- he should avoid frequent lifting and reaching
- he can walk for 5 minutes then needs to rest for 15 minutes
- he can walk a total of 1 hours in an 8 hour day
- he can stand for up to 2 hours at a time, then needs to rest for 15 minutes
- he can stand for up to 3 hours in an 8 hour day
- he can sit for up to 1 hour at a time, then needs to rest for 10 to 15 minutes
- he can sit for a total of 6 hours during an 8 hour day
- he cannot perform job that require significant pushing and pulling – specifically he cannot perform the pushing and pulling that might be required in a job at the light exertional level
- he should avoid repetitive bending
- he should avoid climbing ladders, ropes & scaffolds
- he should avoid repetitive use of stairs
- no crouching, crawling or kneeling
- avoid jobs that require balancing
- he has a poor ability to interact with the public
- he has a poor capacity for attention and concentration over an extended period of time
- he has a poor ability to complete tasks in a timely manner
Based on these limitations, could such a person return to past work?
Q: could such a person perform any competitive work?
Analysis/summary: the judge will approve this case based on my client’s mental and behavioral limitations. Items 16, 17 and 18 of the hypothetical represent an individual with “poor” capacity. Most judges consider “poor” to mean a limitation that could not be part of an individual’s job requirement. If “poor” is in a hypothetical, that is usually a sign that we are going to win, especially in the case of essential functions like attention and concentration and completing tasks in a timely manner.
The judge obviously found my client’s mother’s testimony to be believable and compelling and he will issue a favorable decision in this case.