43 Year Old HIV Claimant With Depression and Low IQ
Claimant: 43 year old female
Past work: Housekeeper at motel, child care attendant, waitress
Education: 12th grade – no problems reading/writing
Hearing info: the claimant applied for benefits in September, 2003, alleging that her disability began in March, 2003. After reviewing the earnings record, I noted that she worked full time for six months in 2005. I therefore suggested to my client that we amend our onset date to July, 2005, when she stopped working. In my experience, it is difficult to convince a judge to award benefits if the claimant worked full time after the alleged onset date. The medical evidence in this case was not overwhelming and I felt that we needed to make the judge’s life easier. Further, the Appeals Council would be more likely to reverse a favorable decision if the judge used an onset date that preceded a 6 month work effort. Therefore, with my client’s permission, I amended the onset date prior to the start of the hearing.
Hearing strategy: in reviewing this case, I saw some positives and some negatives. I was most concerned by the relatively sparse medical record. My client had been treating at a low cost community clinic and the medical records generated by the treating doctor were austere at best. The doctor focused primarily on the medications and occasionally medication side effects. There was little discussion about my client’s day to day complaints, or my client’s complaints of depression (although the treating doctor did prescribe several strong anti-depressants). Further, the lab results showed that her HIV viral load was being suppressed successfully. We were also unable to get a functional capacity questionnaire from the treating doctor in this case.
Upon meeting with my client, I saw immediately that this case was going to turn on her testimony. As noted above, she is 43 years old and she has 3 children – one still in high school, one attending college and a third who is in his mid-20’s and disabled. My client has not yet told her children about her HIV diagnosis. She advised me that only 2 or 3 close friends/relatives know. My client became extremely tearful and agitated when talking about this – she is worried about how her children will react when they find out and she is especially worried about what will happen to her disabled adult son. She also recently lost her mother, her father and a favorite aunt, all of which left her feeling very alone and vulnerable.
Social Secrurity had sent my client to a consultative psychological evaluation – this was in 2004. The evaluation report stated that my client had an IQ of 67 and that she was extremely focused on her medical problems. I did not get the sense from speaking to her that her intelligence was this low, but it was clear to me that she did not have a great deal of capacity for introspection and that it would be unrealistic for her to fully appreciate the improvement in the prognosis of HIV patients – for her, an HIV diagnosis was a death sentence, and despite favorable test results and the apparent slowing in the progress of her disease, she was going to take a very negative approach towards her future.
My client also spoke about the numerous side effects that she experiences, including fatigue, mood swings and muscle weakness. She reported daily crying spells and a sense of hopelessness about her future.
So, as we entered into the hearing room, I had a case where the medical records were not particularly helpful but I had a client who was obviously very distracted and upset about her situation and whose daily existence was primarily focused on her medical situation.
I decided to focus my questions on her emotional state. As I had hoped, my client was very descriptive in explaining how upset she was and how hopeless and helpless she felt. During the hearing she frequently became tearful and I felt that she came across as credible and straightforward.
Following the claimant’s testimony, the judge posed several hypothetical questions to the vocational witness. The first question downplayed the emotional/psychological issues and included only moderate physical limitations. The question resulted an a response that there were jobs that existed. The second question included the limitation of “marked limitations in sustained concentration and persistence.” To this question, the vocational witness responded that there were no jobs.
I think this case boils down to whether the judge felt that the claimant was credible. My sense is that the judge will award benefits because her emotional issues are clearly more than “mild.” If I was the judge and I planned to deny this case, I would have posed a hypothetical question that identified the emotional/depression issues in detail and I would have assigned a “moderate” grade to them. On the other hand, there was very little evidence about the emotional issues other than a 3 year old consultative evaluation, so I suppose that the judge could simply evade the issue entirely and use the consultative as his evidence of mental health issues.