Applying the Grid Rules – Case Study #3
Claimant: 57 year old female
Past work: photography studio sales rep, owner of housecleaning service
Education: high school graduate
Basis of disability claim: in February of 2005, my client underwent triple bypass surgery to restore blood flow to her heart. There were complications following surgery that resulted in fluid on her lungs. She has subsequently had multiple catheterizations and a stent placement. In addition to ongoing chest pain and pressure, she continues to have sharp pains around the incision site. In addition, she has an unusual esophageal disorder called Barrett’s esophagus which causes gastric upset and requires frequent restroom visits.
Analysis: The hearing in this case was held in February, 2009. My client’s cardiac issues are well documented and her treating cardiologist completed a very supportive functional capacity evaluation. I felt confident we would have a strong functional capacity argument for disability. I also recognized that the facts of this case might make my client eligible for disability under the grid rules. This turned out to be the case.
Prior to calling the case, the judge’s hearing assistant came out to the waiting area and asked me to come and meet with the judge prior to the hearing. This type of conference is called a “pre-hearing conference” and it is more common in state courts.
Although I could think of no negative reason why the judge would want to talk to me I must admit that this request to meet with the judge brought back memories of getting a request to meet with the principal for some alleged school time transgression!
In any case, I entered the hearing room to meet with the judge and he greeted me warmly and stated that after looking at the record in this case it appeared to him that grid rule 202.04 or 202.06. Grid rule 202.04 provides for a finding of disability in a claimant with a high school education, an unskilled work background a light “residual functional capacity.” Grid rule 202.06 provides for disability in a claimant limited to light work (a light “RFC”), with a high school education, skilled or semi-skilled work but no transferrable skills.
The judge wanted me to know that he intended to ask the claimant just a few questions to confirm her “light work” capacity and then he would turn to the vocational witness. The judge wanted to prepare me for a hearing in which I would not need to say a lot and he showed me the courtesy of letting me know this – a gesture that I appreciated.
With this pre-hearing conference completed, the judge called the claimant in and opened the hearing. The judge advised my client that he and I had conducted a pre-hearing conference and that we had decided that extensive questioning was not necessary. The judge then asked the claimant to tell him about her cardiac problems and to discuss whether there was any point following her bypass surgery at which she could have returned to full time work.
My client got a little off topic by telling the judge about her frustration with surgeon’s refusal to address the post-operative fluid build up in her lungs, but she did a nice job in explaining about her poor energy level and stress arising from constant chest pain and worry about looming serious heart problems.
After taking testimony the judge turned to the vocational expert and asked him to classify the claimant’s past work. The VE responded that the claimant’s past work was medium and semi-skilled, with no transferrable skills. As an aside, I don’t know that this is entirely accurate as my client’s work in the housekeeping business was as a business owner, which involved running payroll, hiring and firing employees and other managerial functions. I think that the business ownership functions do generate transferrable skills, but the VE in this case either overlooked or misunderstood the nature of my client’s past work.
The judge then posed a hypothetical question:
Q: Assume I find that our hypothetical person is “closely approaching advanced age” (age 55-60) and is limited to a light RFC. I am going to assume that she could not perform past work because that work was at the medium exertional level.
A: That is correct – past work would be excluded by the light RFC
Q: Are there any transferrable skills to light work?
Q: if that is the case, it appears to me that grid rule 202.06 applies based on the claimant’s age, education and past work.
A: that is how I see it
The judge then turned to my client and stated that based on what he is seeing in the file, she qualifies for disability but that he reserved the right to reconvene the hearing if he discovered something in the record that was not currently apparent.
The judge then asked me if I had anything else to say. I responded by stating that I did want to put on the record that in addition to her cardiac problems, my client had a serious gastrointestinal problem that caused both reflux and chronic diarrhea.
I normally would not say anything if a judge finds in favor of my client using a grid rule, but I wanted this gastrointestinal issue on the record in the very remote outside chance that the judge did not follow through on his grid analysis. I have no reason to think that this judge would do that but I have an affirmative obligation to protect my client’s interest.
Summary: this case was a winner under either a grid rule theory or under a functional capacity theory. My client also had the other characteristics of a good case – she was in her late 50’s at the time of onset, she had a long and productive work history, she had a medical problem with significant documentation and she had unwavering support from a treating physician.