Kidney Disease Case Study #1
Claimant: 33 year old female
Past work: cashier and customer service for fast food restaurants, back office customer service for electronics chain, and for water distribution company, housekeeper for motel
Education: 10th grade
Hearing Info: this case was a concurrent claim – my client applied for both SSI and SSDI. She applied for benefits in May, 2005 alleging an onset date in September, 2004. The hearing was held in March, 2009. My client had two somewhat extensive work attempts in 2006-2007 and 2008. In 2006-2007, she worked for almost 18 months off and on for a fast food restaurant. In fact, her earnings in 2007 totaled more than $9,000. In 2008, she worked almost 7 months, but again, was only able to perform her job for 2 to 3 months at a time before having to take off 2 to 4 weeks to allow her body to recover.
I felt that my client’s work attempts helped prove her credibility. During 2007 and 2008, my client separated from her long time partner and father to her 5 children. Apparently this gentleman was somewhat abusive and is currently incarcerated, meaning that my client gets no child support.
My client advised me that she took the two post-onset jobs because she desperately needed money to support her family. She further states that despite this tremendous need for income, she has been unable to work since July of 2008 and since that time she has been moving from place to place, surviving only with the help of food stamps and welfare. She further advises me that she has not been able to afford medical care or medicines since mid-2008.
My take on all this – this is a person who has demonstrated by her actions that she would work despite pain, discomfort and possible damage to her health. This is a person would would be working, even part time, if she could. In my view, her work attempts add to her credibility as a claimant.
Because of these financial constraints, however, the medical record essentially comes to an end in 2008 – meaning that there are no records for the past 8 months.
Hearing Strategy: Upon reviewing the medical file in this case, I saw some positives and few negatives. On the positive side, my client’s condition had been identified by objective testing – her kidneys were clearly diseased and not functioning properly. Several of the lab reports in the file showed blood protein levels 500x normal. She also had demonstrable swelling of her legs and feet. It appeared to me that this claimant was at or close to Listing 6.06, although there was no medical expert present at the hearing.
There were also a few negatives. First and foremost I had no functional capacity form, statement on the listing or any sort of narrative summarizing the extent of kidney damage or lack of kidney function. We did have lab reports and some description of symptoms, but I would have felt better if there was a medical document that “put it all together.” The judge in this case is a nice person, but I have always found him to be somewhat conservative. Further, I have not had much luck with this judge in cases where there was no functional capacity form or statement on the listing.
I was also concerned with my client’s youth and family situation. As noted above, my client was 33 years old, which is quite young for Social Security purposes. She was also a single mother with five children, meaning that a finding of disability would mean a long term government obligation to my client as well as to her auxillaries (her children). Finally I was a little concerned about the somewhat extensive part time work – would the judge conclude that my client had the capacity to perform sit down work (less strenuous than the fast food work).
Course of Hearing. The judge in our case does not say very much and I prepared my client to expect little or very few questions from the judge. As expected the hearing began and the judge introduced himself, then he said “Mr. Ginsberg, you may examine if you wish.” The judge did note that he saw earnings after the alleged onset date and asked me to go into this with the claimant. I began by confirming my client’s identity, her address and her Social Security number. I then asked her questions about past work, starting with her recent part time work. We covered her work history going back 15+ years (I also do this because there was a vocational expert present).
Next, I turned to the medical condition. Rather than asking my client to speak about medical issues, I usually ask my questions from the perspective of what it means to live with a particular condition. Here my question was along the lines of “I see from your record that you have been diagnosed with a kidney condition called focal segmental glomerulosclerosis. According to the medical record this means that the blood vessels in your kidneys and the parts of the kidney that clean your blood are not working properly. What does that mean to you in terms of your daily activities and functioning?”
My client testified about the problems she is having – primarily painful swelling in her legs and feet, her need to keep her legs raised and extended, problems sitting more than 20 minutes at a time, fatigue and “pins and needles” pain.
I also elicited testimony from her that she could not currently afford her medications but when she did take her meds, she needed to urinate 6 or more times per hour.
After taking testimony from my client that covered all of her symptoms and eliciting testimony about her limited capacity to sit, stand, walk and concentrate, I concluded my direct examination.
The judge then turned to the vocational witness and asked for description of the claimant’s past work. The judge advised the VE not to consider the two fast food jobs as he saw those as “unsuccessful work attempts.” The remaining, pre-onset jobs were described as:
customer service representative – sedentary, low end skilled work
housekeeper/cleaner – light, unskilled
telephone solicitor – sedentary, low end semi-skilled
order taker – sedentary, semi-skilled
The judge then posed the following hypothetical questions:
Q1: Assume an individual 29-31 years of age, with a limited education and past work as described by the claimant. Assume that she has the capacity for lifting 25 lbs. frequently and 50 lbs. occasionally. She can sit for 6 out of 8 hours during a workday and stand for up to 2 hours during a workday. She should avoid jobs that involve ladders, ropes and scaffolds. Could she return to past work?
A1: Yes, she could return to the telephone solicitor, order taker and customer service rep jobs.
Q2: Change hypothetical #1 and reduce the lifting capabilities to 10 lbs. frequently and 20 lbs. occasionally. Would that change your answer?
The judge then turned the questioning over to me. I asked 2 questions:
1. assume that we add to Hypothetical question 2 the following limitation – our hypothetical person must keep her legs extended and raised. Would that change your answer?
A: such a person could not perform past work or any other work.
Followup – if a person needed to keep her legs raised and extended for up to 4 hours per day would that preclude competitive work?
2. if a worker took medication that caused her to need to take as many as 4 unscheduled bathroom breaks every hour, would that preclude past work and any other work?
Summary: this case clearly boils down to whether or not the judge finds my client credible. His hypothetical questions certainly do not contemplate any significant impairment, and certainly not an impairment consistent with what I see in this claimant’s medical record, so I am not hopeful.
This is one of those cases where 8 out of 10 judge would approve based on the nature and degree of severity of the medical condition. It may be, however, that my client may have drawn one of those judges who takes a very conservative and limited view of the idea of disability.