Summary: 46 year old female alleging disability based on complications arising from a diagnosed case of lupus
Client profile: 46 year old female
Education: graduate school education
Past work: high school science teacher
Claim background: my client filed for benefits in October, 2010, alleging an onset in January, 2008, the date she was asked to resign from her job (or be fired). A hearing was held in an Atlanta are hearing office in November, 2012.
Medical background: my client was diagnosed with lupus (Systemic lupus erythematosus or SLE) back in the early 2000's. Shortly thereafter she began experiencing seizures which may be related to the lupus. The seizures have been controlled by medication. My client also has been diagnosed with asthma, which she can control with an inhaler if necessary and by avoiding dusty environments. Our argument for disability arises from the lupus, and the associated complications of joint pain, rib cage pain, fatigue, photosensitivity (including severe rashes), and drowsiness from pain medications.
Factors in our favor:
- lupus is an autoimmune condition that can be verified by blood tests and my client’s diagnosis is not in question
- there is no cure for lupus and judges recognize that patients will have lifelong symptoms that do not spontaneously improve
- my client is well educated and was engaged in a long and productive career – people like this do not stop working in the hope of collecting disability payments
- my client has had consistent medical treatment
- my client is well spoken and presented very credibly to the judge
- the judge assigned to our case is more likely than average to approve claims
Factors not in our favor:
- my client is a very social person and there are references in the record to multiple attempts at volunteer work
- we were not able to get a functional capacity form from a treating physician
- my client’s mental health provider refused to release treatment notes
- my client’s functional limitations essentially arise from fatigue and pain, both of which are subjective limitations
My strategy: I felt that the medical record painted a compelling picture of a patient who was struggling to balance her consumption of pain medications with functioning in life. The standard medical protocol for lupus involves prescribing high doses of narcotic pain medications and my client was trying to avoid going through life in a drugged stupor. I expected that she would make a very credible witness and I was hoping that the judge would find her very credible.
Hearing Report: my client and I entered the hearing room and were greeted by the judge, who introduced himself and the vocational expert. After accepting the medical record into evidence and confirming the claimant’s identity, the judge began asking her questions about her symptoms. Interestingly the judge did not ask me for an opening statement, which was unusual for this judge.
My client testified very matter-of-factly about her symptoms. I was pleased that she was very truthful in acknowledging to the judge that her seizures were controlled with medications and that she was able to avoid developing migraine headaches by taking her medications quickly. These acknowledgments greatly bolstered her credibility and I could see that the judge had gained respect for her.
After the judge asked his questions he turned to me for followup. I mainly focused my questions on quantifying the number of days or hours that my client experienced her symptoms. I elicited testimony that my client needed to rest for at least an hour every two to four hours and that she needed to urinate hourly because her lupus often resulted in dehydration and the need to drink water frequently.
After I completed my redirect the judge turned to the vocational witness, swore him in and asked the following questions:
1. Please describe the claimant’s past work.
A: all past work was as a secondary school teacher, which is light and skilled work.
2. Assume an individual 42 years of age, with the same education and work background as the claimant. Assume that she is limited to light work with the following additional limitations:
- no climbing ladders, ropes or scaffolds
- no concentrated exposure to fumes or gasses
- no work around hazardous equipment or machinery
- limited to unskilled work
Could such a person return to the claimant’s past work?
A: No, the claimant’s past work was skilled.
3. What unskilled jobs could this hypothetical person perform?
A: Such a person could function as a:
- cashier II
- retail sales attendant
- cafeteria attendant
4. Now assume that I find the limitations described by the claimant are credible. Could she perform any of these light unskilled jobs or any other jobs?
A. Based on the claimant’s assertions of her need to take unscheduled breaks to rest during the workday and her testimony that needed to take unscheduled breaks to use the restroom hourly, it is my opinion that there are no jobs in the economy that would allow such limitations.
The judge then asked me if I had any questions – I replied that I did not. The judge thereupon closed the hearing.
Conclusions: based on the questions that the judge asked, I believe that this case will be approved. Once the judge found that my client could not perform past work, the legal burden shifted to Social Security to show that other jobs existed. The judge’s question that factored in my client’s credibility was not qualified – in other words, he did not say “assume I find that our hypothetical person would need to take one unscheduled break per week but otherwise could perform regular duties.” So, unless the judge finds my client completely non-credible (which would run contrary to the medical record), he should approve this case.