Claimant: 34 year old female
Past work: telemarketing sales, flight attendant, waitressing
Education: high school graduate + 3 years of college
Hearing info: my client applied for benefits in May, 2006, alleging disability as of December 1, 2003. My client did return to work full time working for a shoe store in October, 2006, so this case became a request for a closed period of disability beginning on December 1, 2003 and ending on October 1, 2006.
Hearing strategy: my client has a long and extensive treatment record for her Crohn’s disease dating back to the mid-1980’s. In 1993, she underwent a fairly radical surgery to remove part of her colon and rectum and was fitted with an ostomy bag. I felt that this was a good case because:
- my client had an extensive, long-standing medical history of severe Crohn’s disease
- she had a solid work history prior to stopping work in August, 2003
- she had returned to work and was asking for a closed period of disability. In my experience, judges usually find closed period applicants – especially younger applicants – more credible than those asking for on-going disability
- in addition to the Crohn’s disease there was also an element of depression and a possible eating disorder which I felt further legitimized my client’s claim.
In preparing for this case, I drafted a pre-hearing brief detailing my client’s extensive medical history and made the argument that during the time she was not working, she would not have been reliable because of her symptoms and also because of her need to recover from surgery.
The Hearing: the judge called the hearing to order and quickly went through preliminary matters. This was a video hearing before a judge that I did not know, but who appeared to be intelligent and prepared. This was a case that, in my opinion, could have and should have been granted in about 5 minutes – that the judge conducted a 30 minute hearing tells me that this judge is both thorough and somewhat conservative in his evaluation of disability.
After calling the hearing the judge asked me if I wanted to raise any preliminary matters. At that point I advised the judge that we were asking for a closed period of disability. After confirming the dates of the closed period, the judge turned the questioning over to me.
Direct Examination of Claimant
I began by asking my client about her past work and about any issues she had working. As noted above, my client’s last job involved telemarketing sales and she testified that this work was very high pressure and very stressful. She testified further that during her last few weeks of work she had begun missing parts of days and full days because of flareups from her Crohn’s. Specifically I elicited testimony that because of this stressful work, she needed to visit the restroom on an hourly basis to empty her ostomy bag and that extensive handling of the bag would make it subject to leakage, also making her more susceptible to infection.
I asked her about her more recent surgery – an addition resection of her colon in May, 2004. We spoke about her recovery and issues arising from depression and her eating disorder.
Finally, I turned to her efforts at returning to work. She began working for a temporary service for two or three days a week in August, 2005 through January, 2006, and eventually was able to return to full time work in December, 2006.
I asked my client why she returned to work and she testified that she did not feel productive while at home and that she was highly motivated to interact with others and earn an income. I asked her if there was anything she could have done during the period of time December, 2003 through September, 2006 and she testified that the biggest issue would have been with her attendance.
Questions by the Judge
The judge then asked a few follow up questions about her decision to return to work. He then stated that he had heard enough and he turned to the vocational witness and posed a hypothetical question that included the following restriction:
because of a diagnosis of Crohn’s and colitis, our hypothetical claimant would have needed to take unscheduled breaks during the workday to attend to personal needs in the restroom and would likely miss as many as one day a week because of her symptoms.
The vocational witness, not surprisingly, testified that this limitation would preclude past work and any other work.
The judge then wished my client luck and closed the hearing.
- this was a very strong case – I cannot think of too many judges who would have turned it down, although I don’t know that this case necessitated a 30 minute hearing.
- I get the sense that this judge does not grant many cases involving younger claimants – my client’s work history and her return to work were factors that worked in her favor in terms of her credibility
- I think that the picture that we painted here was of an individual with a serious medical problem who underwent surgery that left her with a permanent impairment (an ostomy bag) but not an impairment that would necessarily preclude all work. We did not try to argue that her Crohn’s diagnosis was inherently disabling or that her ostomy bag was disabling. Instead we argued that her condition was one that could lend itself to significant flareups and complications and that during the closed period of disability she experienced a significant and severe flareup that required surgery and left her unable to perform any substantial activity for over 2 years.
- as has been the case in other IBS or Crohn’s cases, excessive bathroom breaks gave rise to a fairly significant vocational limitation