Claimant: 55 year old female
Past work: magazine copy editor, free lance writer, insurnace sales
Education: college degree
Hearing info: my client filed for benefits in December, 2009 alleging an onset date in September, 2008. The hearing was held in October, 2011.
Background: my client alleges disability based on fibromyalgia. Like many of my fibromyalgia clients, this individual meets the profile of legitimate fibromyalgia claims:
- she is a middle aged female
- she is a high achieving person who had accomplished a great deal during her working career
- she had experienced two significant physical traumas in the past – a serious concussion in the 1980’s and a bad fall from a horse in the mid-1990’s
My client complains of poor concentration and difficulty “finding the right word.” She experiences poor (“non-restorative”) sleep and senses myofascial pain all over body. She experiences muscle spasm and weakness on her right side (where she landed after being thrown from the horse) and frequent headaches and vertigo (perhaps a result of her concussion).
My client has been treated continuously and her pain physician is supportive and provided me with a very helpful functional capacity form.
My client has been trying to remain productive by seeking some free lance writing work, although her earnings and time expenditures are far below “substantial gainful activity” levels.
Hearing Strategy: As there is no listing for fibromyalgia, I knew we would have to argue that my client’s functional capacity for work has been so eroded by her symtoms and the side effects of the various medications that have been prescribed to keep her comfortable. I felt that this was a good case because we had strong support from a treating doctor, and because my client came across as a credible and believeable witness.
During our pre-hearing conference, I advised my client that we would need to address the part time work issue (her free lance writing assignments) to convince the judge that this was not equivalent to full time work, and that we would need to offer specific estimates of her capacity for various physical tasks, such as sitting, standing and walking.
Hearing Report: the judge in this case has been on the bench for several years and I have tried many cases before him. He is a very nice person and always gives claimants a very fair hearing. I felt, going in, that he would be receptive to this strong claim.
The judge opened the hearing by introducing himself, the hearing reporter and the vocational expert witness (who was appearing telephonically). The judge accepted the evidence into record and then asked me for an opening statement.
I explained that my client’s claim arose from fibromyalgia and that we were arguing that her functional capacity for work has so eroded by her symptoms and her medication side effects that she would not be a reliable worker at any type of job.
The judge then asked my client a few opening questions about her living arrangements and her past work. He specifically stated that he would leave it to me to ask about her free lance work. After a few questions, the judge turned the hearing over to me.
I began my questioning by asking my client about her free lance work. She testified that in years past she wrote for several different publications in her area of expertise but over the past few years, the free lance work had dried up because of her inability to produce articles fast enough. She stated that she had one remaining magazine client and that she wrote one 1,000 word article every few months. She stated that this type of article should take about two days to write but given her need to take breaks and to gather her concentration, each assignment might take several weeks. She testified that she might work 2 to 3 hours per day, three to four days per week and that was her maximum capacity.
I then began a series of questions about the fibromyalgia. Prior to the hearing, I had set out an outline of symptoms I wanted to cover, including:
- pain on the right side
- concentration problems and cognitive decline (“fibro fog”)
- vertigo, dizziness and nausea
- headaches
- medication side effects
I began by asking her to describe her two physical traumas – the concussion in the 1980’s and the horse accident in the 1990’s. I noticed during her testimony about these two events that her thoughts tended to wander and that she did not directly answer my question without follow-up prompting.
While I am assuming that some of these indirect answers are a function of the “fibro fog,” I did not want to lose control of the questioning or upset the judge regarding the time it was taking to get to the point. Thus, after taking testimony about the two physical injury, I decided to make my questions about the symptoms more in the form of leading questions.
Normally I try to avoid leading questions as some judges find this tactic objectionable but I felt that this judge would not mind and that doing so would help keep the hearing on track. I then proceeded to ask very specific questions about my client’s physical capacity (how much time she could sit, stand, and walk) and about her various symptoms.
I had made it though my list (except for the medication side effects) when the judge stopped me and said that he had heard enough. He then turned to the vocational witness and asked the following:
Q: Please classify the claimant’s past work.
Vocational witness answer:
- magazine editor – sedentary, skilled
- magazine executive – sedentary, skilled
- free lance writer – sedentary, skilled
- I am not including the insurance sales work because she did not earn any money from it and did this for only a short period of time
The judge then stated that he would post a hypothetical question to the vocational witness:
Hypothetical 1 – assume we have a person who is the same age as our claimant with the same education and work background, and who is limited to sedentary work with the following limitations:
due to a combination of impairments arising from fibromyalgia and medication side effects, this person would need to take a minimum 2 hour rest break during a work day.
Q: Could such a person return to the claimant’s past work?
A: No
Q: Could such a person perform any other work?
A: No
The judge then thanked the vocational witness and turned to my client and stated that he was going to award her benefits. He then read a brief “bench decision” into the record and closed the hearing.
Analysis: this case was successful because we had strong medical records, including a very supportive functional capacity from from the treating doctor, and because my client testified very credibly. We also had a judge who is very reasonable and was comfortable with recognizing fibromyalgia as a legitimate cause of disability.