Claimant: 51 year old female
Past work: “debit insurance agent,” clerical work, telemarketing
Education: high school graduate
Hearing Info: my client had last worked full time in 1999 when she left her job as a debit insurance agent. Debit insurance agents sell policies to less affluent policyholders and the agents service the accounts by driving from house to house collecting monthly premiums. After leaving the insurance job, my client tried to work in a clerical position and later as a telemarketer. The judge in our case is a very nice person but he tends to be very conservative when it comes to granting cases. Our hearing was held in July, 2008.
Hearing Strategy: The issue in our case was fairly straightforward. My client was a 51 year old female with bad knees. She is 5’4” and around 240 lbs. Her knee problems arose over 20 years previously when she was involved in a bad car accident that caused damage to her knees. By the time she left full time work in 1999, her knees had deteriorated to the point where her doctors were recommending bi-lateral knee replacements.
The file contained reports from two different doctors recommending knee replacements. Both of these reports were from the fall of 2004 so we decided that our alleged onset for disability would be in September, 2004.
My client’s date last insured for Title II disability was December 31, 2004, meaning that I needed to prove onset prior to that date. Fortunately I had medical records from September, 2004 that referenced the need for knee replacements.
Despite the medical recommendation for surgery, my client had not had any operations. She is anemic and might require blood transfusions. My client has opposition to blood transfusions for religious grounds, so she has basically been in medical limbo since 2004. She was also limited to ice and over the counter pain remedies as she had experienced bad reactions to several prescription painkillers.
So, going in I had an individual who was at the right age for disability (50+) without a great long term work record who had a significant medical problem. Although her knees had deteriorated to the point where she needed knee replacements, she had been able to survive for the past four years. Although my client might very well meet or equal a knee listing, we had no such documentation from her doctors since she basically has not been to the doctor over the past four years (my paralegal had explained to the claimant about the need for recent medical treatment but my client could not afford doctor visits when there was basically nothing that could be done other than surgery). This absence of ongoing medical treatment was a weakness of this case.
My concern was that the judge might accept that she could not perform work involving standing or walking but that she might be able to perform sit down work. Would the judge conclude that her pain did not rise to the “unable to perform any substantial activity” threshold given that she had been able to survive for the past four years without surgery and without prescription pain meds?
Hearing Description: the judge opened the hearing by greeting the claimant and me and asking if I had explained all issues to my client. My client’s husband had asked to observe the hearing and I confirmed to the judge that the husband would not be testifying. The judge then introduced the hearing reporter and the vocational witness. He then turned to me and asked me to present my case.
I began by asking my client about her past work and establishing that my client had tried to return to work on two occasions after 1999 – both of these job efforts were not successful. She testified that the clerical job required her to sit in a small work area and that the extended sitting became too painful She testified that the telemarketing job was done from home but that she could not sit for more than 45 minutes before she would have to lie down.
We then turned to the origin of her knee problems – an automobile accident in the 1970’s. My client testified that her knee pain became worse and worse over the years and that by 1999, she was having a great deal of trouble getting in and out of her car and walking to visit clients.
She then testified that her doctors had recommended bilateral knee replacements in 2004 and that she had decided to go forward, but did not do so because of her anemia and the possible need for blood transfusions.
I asked her about her knee pain now and had her rate the pain on a 1 to 10 scale. She testified that her pain was always at a 5 or 6, and that it spiked up to a 8, 9 or even 10 if she over did it physically or of she walked too much.
During the hearing my client was constantly shifting positions and she appeared to be very uncomfortable.
After I finished my direct examination, the judge asked a few follow up questions. He asked several questions about the type of treatment my client was using to deal with the pain – ice and over the counter medications.
The judge then turned to the vocational witness and asked several questions. Several of these questions limited the hypothetical person to sedentary work with mild limitations. His last question included a severe pain limitation.
I asked one question – what would the impact of a limitation in which our hypothetical person needed to sit with her legs raised and extended for up to 4 hours per day. The answer, of course, was “no jobs.”
Summary: this case involves line drawing. If the judge accepts my client’s testimony that she is basically homebound with her legs raised and extended, and experiencing significant pain regularly, he will approve the case. If he feels that her capacity to survive 4 years using ice and Tyelonol represents a milder level of pain, he will deny the case.