Summary: 54 year old female with chronic antibiotic resistant ear infections, multiple surgeries and resulting severe, migraine-like headaches
Client profile: 54 year old female
Education: 7th grade
Past work: warehouse work, elevator operator, cashier
Claim background: my client filed for benefits in September, 2009, alleging an onset in September, 2009. A hearing was held in Atlanta in May, 2012.
Medical background: my client has had a lifelong problem which chronic, anti-biotic resistent recurrent ear infections. She has undergone six surgeries to clear out the infection and resulting damage to the bone and cartilage in her sinus cavities. The record also suggests that she has had bone deterioration as well. My client frequently experiences malodorous drainage from her ears, and she complains of severe headaches on a daily basis. My client also has degenerative disc disease in her spine and occasional swelling and pain in both knees.
Factors in our favor:
the medical record documents a chronic, treatment resistant problem
my client has a very limited (7th grade) education and she is over age 50
Factors not in our favor:
the judge in our case approves fewer cases than any judge in this hearing office
we do not have a functional capacity form
there are gaps in the record, primarily due to my client not having insurance or money to pay for treatment
my client presents as a below average witness
My strategy: I felt that the record clearly documented the case of an individual who was constantly sick, with a malodorous, mucusy discharge coming from her ears. My plan was to focus on chronic headaches and her frequent upper respiratory infections as evidence that she would not be a reliable employee.
Hearing Report: my client and I entered the hearing room and sat down. The judge introduced herself and the vocational witness, then began a brief opening statement. My client interrupted her at one point to say that she could not hear everything the judge was saying because of my client’s hearing loss.
I presented a brief opening statement in which I set out my arguments for disability as set forth above. The judge then asked my client why my client felt that she could not work. My client explained that she was always sick and had frequent headaches that were so severe that she could not concentrate and focus.
After asking a few questions the judge turned the questioning over to me. I began by asking my client to talk about her six surgeries and why she seemed unable to get past the recurrent infections. My client noted that as a child she frequently swam in a backyard pond and that she likely picked up a parasite there. She talked about her recurrent infections and about the swelling and pain she experienced several times a week.
I also had my client explain that since her insurance has run out she has not been able to afford regular followup or medicine
After taking testimony the judge turned to the vocational witness and asked the VE to classify my client’s past work. All past work was unskilled. The judge then asked the following hypothetical question:
I. Assume an individual who is limited to light work
- has a sit/stand option
- can occasionally stoop, kneel, crouch and crawl
- no concentrated exposure to gasses, dust and fumes
- should not be required to read small print
- no use of ladders, ropes or scaffolds
- interaction with supervisors or the public should be direct, face to face
Could such a person perform the claimant’s past work?
Q: Now let’s add the claimant’s age, education and past work to the hypothetical. Are there any other jobs such a person could perform?
small products assembler – light, unskilled
garment folder – light, unskilled
storage facility attendant – light, unskilled
The judge then asked me if I had any questions.
I began by asking the VE for more information about her testimony:
- can an individual who cannot see small print see small products to assemble?
- would there not be dust in a factory where someone is folding garments?
- wouldn’t a storage facility attendant sometimes have to climb stairs
The VE hemmed and hawed and basically said that some percentage of the jobs she described would be limited by the restrictions but not all
I then asked her what effect a constant, malodorous ear drainage would have on employment in general. The VE testified that this would be a problem for some jobs, such as customer service jobs or restaurant jobs, but not others, depending on whether the draining could be partially controlled.
I then asked the VE if a person was likely to miss 3 or more days per month because of absences related to chronic respiratory illness would be able to sustain employment and the VE said no.
I asked the VE if a person could sustain employment if she experienced severe headaches daily that resulted in a poor capacity to maintain attention and concentration, or to maintain appropriate pace at work. The VE responded that such a person could not sustain competitive employment.
The judge then adjourned the hearing and we exited the hearing room.
Conclusions: I get the sense that the judge will not approve this case. Usually when a judge asks only one hypothetical question and the vocational witnesses’ response is to identify jobs, that is not a good sign. This is a case that would have been approved by 30 to 40% of the judges I see on a weekly basis. Unfortunately we drew the judge least likely to approve any case and I do not think that she will find my client’s impairments significant enough to warrant an approval.