Claimant: 49 year old male
Occupation: My client had been a heavy equipment operator, driving a truck machine for the county that also required heavy lifting. He had also been working a second job as a shuttle bus driver. Prior to this he had driven a garbage truck, had worked construction and had worked as a school custodian. My client’s work history was consistent and reflected an individual who was hard working and motivated to work.
Education: high school graduate
Hearing info: Claimant applied for benefits in July, 2008, alleging an onset date in May, 2008, the day he was severely injured in a one car accident. The hearing was held in May, 2010 in the downtown Atlanta hearing office.
Background: The basis of my client’s claim for disability is severe depression as well as on-going pain and loss of use of his right arm. In the one car accident, my client’s right arm was crushed. He has undergone five surgeries but he has no use at all of his arm. He experiences daily pain, sometimes severe pain in the damaged arm. He also experiences flashbacks and he has become melancholy. Because he can no longer work and support his family, my client has become severely depressed and preoccupied with his injury and his inability to support his family. He has not sought counseling or on-going mental health treatment.
Analysis: In reviewing the file, I concluded that we would have to convince our judge that my client’s depression was so encompassing that he would not be able to perform any type of work. I explained to him that there were jobs that existed in the economy that a person could perform with one arm. These jobs might not pay as much as an equipment operator job, but the issue in a Social Security case was whether a claimant could perform any job.
The medical record in this case contained extensive hospital records documenting the post-accident surgical treatment of my client’s wounds, and one psychological consultative examination. The psych evaluation indicated that the claimant was a credible patient, that he complained of constant pain, and that his physical limitations have caused “significant impairment in his occupational and social functioning.”
What I did not have were any records reflecting any mental health counseling or psychological evaluation. When I discussed this with my client, he shrugged and noted that counseling would not pay his bills and that he did not have the money to see a counselor even if had been inclined to go.
I felt, therefore, that I had a credible and sincere client with a claimed level of depression perfectly consistent with his traumatic physical injury, but I had no independent medical records to support my client’s story.
Hearing Report: The judge opened the hearing by accepting into evidence all of the medical records in the file. The vocational witness assigned to the case was a new VE which made me a little cautious.
The judge asked me to present an opening statement and I summarized the source of my client’s depression, described his pain and depressed mood and I argued that my client’s allegations of depression were consistent with his physical injury.
The judge then asked the claimant a number of questions to confirm that he had no functional use of his right arm. She established that he was right hand dominant and that he could lift 15 to 20 lbs. with his left arm. She then asked him about his pain and to state how often his pain was so severe that he could not function at all. My client replied that three to four times a week, he experienced pain so severe that he could not function at all, and that this pain lasted for at least an hour, or until his pain medication kicked in, which would cause him to fall asleep.
The judge then turned the questioning over to me and I asked additional questions about my client’s pain. I also asked him to discuss his mental state and to explain why he had not sought employment given his past work history. I elicited testimony that he experienced crying spells several days a week that he two to three times a week he did not get out of bed, that experienced daily flashbacks and that he was extremely focused on his family’s financial problems.
Following the direct examination the judge turned to the vocational witness and asked for a description of past work. The VE answered described the claimant’s past jobs, all of which were medium to very heavy. The judge did not ask if there were any transferrable skills.
The judge then asked the VE three hypothetical questions:
I. Hypothetical I: Assume an individual who is the same age as the claimant, with the same education and work experience. Assume further:
he can lift and carry 10 lbs. occasionally with his left, non-dominant hand
he can sit for up to 6 hours in an 8 hour day
he can stand and walk for up to 6 hours in an 8 hour day
he has no functional use of his right arm
he cannot perform work on ladders, ropes or scaffolds
Based on these limitations, claimant can perform:
surveillance system monitor – sedentary, unskilled job
telephone order clerk – sedentary, unskilled job
ticket seller – sedentary, unskilled job
II. Hypothetical II: Same as I but add:
he can only perform jobs that require minimal concentration
Based on these limitations, claimant can perform:
same jobs as given above for #I
gate attendant – light unskilled
usher – light unskilled
III. Hypothetical II: Same as I but add:
he is likely to experience up to 4 unscheduled absences from work each month
Based on this limitation, there are no jobs the claimant can perform
The judge then asked if I had any questions and I responded that I did not as this case clearly turns on the claimant’s credibility. If the judge believes the claimant, she will adopt hypothetical III as being reflective of his functional capacity for work; otherwise, she will deny.
Summary: in this case we are asking the judge to find the claimant’s testimony credible based on the nature of his physical injury, but in the absence of supporting psychological treatment evidence.