Disability – Case Study #8
Claimant: 52 year old female
Past Work: teacher, office assistant, security guard
Education: college education
Hearing info: my client filed for benefits in June, 2008, alleging an onset date in April, 2007. The hearing was held in September, 2010.
Background: My client alleged disability based on fibromyalgia and other not fully diagnosed autoimmune diseases. She believes that she first developed fibromyalgia while working overseas approximately 15 years ago and that her condition has progressively become worse over time. She reports symptoms of fatigue, myofascial pain, memory loss, cognitive decline, cognitive dissonance (i.e. she can “feel sounds”), tremors, and headaches.
She has treated with various pain doctors and has been prescribed pain medications, however, the medical records do not describe significant functional limitations.
Hearing Strategy: I saw this case as one that would be difficult. The medical records did document consistent complaints of fatigue, pain and weakness but these records did not identify specific functional limitations. There was also one incident where my client was prescribed narcotic pain medications from two different physicians at the same time. The doctor who discovered this duplication stopped short of accusing my client of drug seeking behavior and he did not dismiss her from his practice but the implication was that my client had some drug seeking tendencies.
I felt that our best shot was for my client to testify credibly about her complaints and about her desire to return to work.
Hearing report: This case was held before a judge that I know well and who I have always found to be fair, but slightly less likely than average to give a claimant the benefit of the doubt.
The judge called the hearing to order and introduced himself, the hearing reporter and the vocational expert. He asked me if I had any objection to the record and if I had explained the issues in the case to my client. I had met with my client in my office a week earlier so I had no objections was prepared to proceed.
Perhaps because I have appeared several times before this judge he did not ask any question but turned the hearing over to me. I started by asking my client to describe her past work, starting with her most recent job. With each job we discussed, I asked her to explain why she left those jobs.
My client describe the jobs where she had been employed and explained that she left each one because of both her medical condition as well as performance issues. I asked her to explain how her fibromyalgia has led to changes in her life and she explained that as a result of her medical condition, she has lost her independence as well as the energy to perform even minimally demanding activities around the house.
My client appeared fatigued and spoke without much expression. She showed very little emotion describing how her medical condition has left her basically homebound. While I have represented fibromyalgia clients who did better in describing symptoms I did not feel that my client did a bad job, but I felt that this was a case where the medical record was not strong enough to convince this particular judge regardless of how well my client testified.
After listening to the testimony the judge asked a few minor followup questions then turned to the vocational witness. He asked the VE to describe the claimant’s past work – which included:
elementary school teacher – light, skilled
specialty teacher – light, skilled
security guard – light, semi-skilled
copy reader – sedentary, skilled
Hypothetical Question #1: Assume an individual who is the same age as the claimant with the same education and work history. She is approaching advanced age and has a graduate school education
assume she can perform light work
she can climb occasionally
can can frequently balance, stoop, kneel and crouch
she should avoid concentrated exposure to odors, dust and gasses
A: She could perform all of her past work
Hypothetical Question #2: Same as #1 but she is limited to sedentary work.
A: The teaching jobs and the security guard job would not be available because they are light jobs. She could do the copy reader job.
Hypothetical Question #3: Assume we have an individual who could work no more than 4 hours in a workday, and that these 4 hours of work could not be performed consecutively. When not working, she would be resting or lying down. Could such an individual perform the claimant’s past work or any other work?
A: Four hours of work is less than full time work, so, no she could not perform past work or any other work.
Summary: I expect that the judge will issue an unfavorable decision in this case. I do not doubt that my client is uncomfortable and that she may experience symptoms of pain and fatigue. However the medical record was simply not strong enough to document a level of impairment that would preclude all work. I did not get the sense that my client’s treating doctors feel that she is disabled and this unstated opinion permeated the medical record in this case.