Summary: 63 year old male with 11th grade education and no work history approved based on grid rules
Client profile: 63 year old male applying for SSI only. He was 61 as of date of application
Education: completed 10th grade, but dropped out in 11th. Remedial reading and writing skills.
Past work: my client worked for a janitorial service more than 15 years ago. His only earnings within the past 15 years was approximately $1,000 in 1999.
Claim background: my client applied for SSI benefits in January, 2012 when he was 61 years old. His hearing was held in the Atlanta area in November, 2013.
Medical record: my client was diagnosed with and treated for tuberculosis in 2000. This resulted in some scarring of his lungs. He was diagnosed with HIV in 2006 and has been compliant with treatment ever since. His medical treatment has been limited to periodic visits with the local public hospital system where his anti-viral medications are managed. The anti-virals have been effective keeping his viral loads down and he has not developed AIDS.
He does contend that since his tuberculosis hospitalization, he has been unable to gain weight – his stands 5’11” and weighs 125 lbs. He also contends that he is frequently fatigued and can lift no more than 5 to 8 lbs. There is, however, no medical evidence in the file that confirms any of these exertional limitations.
There is also a consultative psychological evaluation which shows that his full scale IQ is 70 and a diagnosis of borderline intellectual functioning. The only associated limitation is a mild limitation on attention and concentration.
Factors in our favor:
- the judge in our case is reasonable and fair
- my client has been over the age of 60 since alleged onset
- my client has less than a high school education
- my client is very thin and appears somewhat frail
- HIV and TB are conditions that can have residual effects consistent with my client’s assertions of fatigue and weakness
- my client is likeable and credible sounding
Factors not in our favor:
- medical evidence in this case is very sparse
- there is no medical evidence regarding my client’s physical capacity
- this is an SSI case for an individual who has not worked in 15+ years whose illnesses are the result of poor decisions
My strategy: I felt that our strongest argument was the grid rule argument. In fact, this appeared to me to be a rare case where grid rule 203.02 might apply. This grid rule is rare because it calls for a finding of “disabled” for a claimant who can perform medium work, but who has a limited (less than high school) education and no past work.
In the alternative, if the judge was to find my client limited to light work, he would grid out at his age because of his unskilled work background and less than high school education.
If the grid rules did not work, I was prepared to argue functional capacity or even a listing level argument at 12.05C – which requires a full scale IQ of between 60 and 70 and “a physical or other mental impairment imposing an additional and significant work-related limitation of function.”
Hearing Report: my client and I entered the hearing room and were greeted by the judge. There was a vocational expert present. After proceeding through preliminary matters, the judge asked me to make an opening statement.
I began by noting that this was an SSI only case with an application date in early 2012. Because SSI claims can only be paid as of the application date, I amended the onset date from 2006 to the application date.
I next made my grid argument – that my client appeared to meet the grid rule (medical vocational guidelines) at 203.02: that he was age 60-64, that he had no past work 1, and that he had a limited (less than high school graduate) education.
At that point the judge stopped me and exclaimed, “counselor, you must be mistaken. No one grids out at medium.”
I replied “your Honor, with all due respect, take a look at the medical vocational guidelines and you will see that there are two instances where a person can meet the grids even if he can perform medium work and this is one of those rare cases.”
The judge looked at his computer and acknowledged my argument. “Counselor, I stand corrected, you are right. I had no idea that anyone could grid at medium.”
The judge then asked me if I had any evidence that my client’s physical capacity was limited to medium or less. I replied that (1) he would testify about his limitations on standing and for lifting; (2) that there was evidence of past lung damage and an HIV infection which can logically support this testimony; and (3) that he was significantly underweight, giving further credibility to my argument.
The judge thought for a minute and suggested that he may want to send the claimant out for a consultative physical evaluation, then he stopped and noted that the only way my client would not meet the grid would be if he could perform heavy work and that such a level of work would be difficult for any person age 60 or older.
The judge asked me to take testimony and I asked my client about his experiences trying to lift boxes, and about his fatigue. After a few minutes, the judge noted that he had heard enough and he announced that he would be issuing a favorable decision based on the grid rules.
Conclusions: this case is a good example of why every claimant over the age of 55 should look at the grid rules. Although there was not a lot of medical evidence, the judge’s decision reflects the built in bias of Social Security disability for older, less educated claimants.
- His only past work was for a few months 14 years ago, which, for Social Security purposes equals no work. ↩