Summary: 45 year old male with chronic neck and back pain, diabetic neuropathy and sleep apnea
Client profile: 45 year old male
Education: high school graduate
Past work: assistant manager at retail store, customer service representative, restaurant manager
Claim background: my client filed for benefits in January, 2010 alleging an onset date in 2005. A hearing was held in Atlanta in May, 2012. My client had previously applied and been denied at hearing in August, 2009. His date last insured for Title II benefits was March, 2010. During the hearing, we amended his alleged onset date to January 15, 2010, which was after the decision date in his prior hearing but before his date last insured.
Medical background: my client injured his right arm and shoulder at work in August, 2005 when he was unloading boxes. He filed a workers’ compensation claim and began treating with a workers’ compensation doctor. He received conservative treatment in the form of physical therapy and injections. Eventually surgery was recommended but never done because the workers’ compensation carrier would not authorize it. From 2006 through 2011, my client continued to receive non-surgical treatment as well as chiropractic treatment. Over time, the pain in his right upper extremity spread to his neck and both arms.
During this time, he also sought treatment for diabetes and sleep apnea. He received treatment from a podiatrist for diabetic neuropathy in his feet which significantly affected his walking. His sleep apnea doctor diagnosed severe sleep apnea that resulted in non-restorative sleep and fatigue during the day.
Factors in our favor:
- my client has continuously sought treatment since his original injury
- because of the neuropathy in his foot, my client walks slowly with a pronounced limp and must use a cane
- my client has a solid work history
- the judge assigned to this case tends to approve more cases than average
Factors not in our favor:
- the workers’ compensation medical record is not supportive at all
- the physical consultative evaluation from Social Security is not supportive at all
- we did not have a functional capacity form from any doctor
- my client had previously been denied at hearing
My strategy: I saw this as a difficult case because the medical record was not especially supportive and because there was not a consensus on the diagnosis. I felt that our judge assignment was very favorable because this judge often relies on his gut instinct about a claimant’s credibility rather than the medical record only.
Hearing Report: when my client and I met at the hearing room and I learned who our judge was, I made sure to emphasize to my client the importance of testifying credibly and clearly. I especially stressed the importance of not over-exaggerating.
When our case was called, I made sure to have my client enter the room first, so the judge could see his difficulty walking.
The judge introduced himself and the vocational witness then we proceeded to accept evidence into the record and discuss the onset date and date last insured issue mentioned above.
The judge then asked me for an opening statement, which I provided. The judge asked a few preliminary questions then he turned the questioning over to me.
I began by asking my client about his original work injury and resulting upper extremity problems. We discussed his problems getting aggressive care from the workers’ compensation doctors and how the pain on his arm and shoulder had spread to his neck and back . I asked him about his diabetes and his absence of sensation in both feet.
The judge interrupted and asked about the cane. The judge also asked my client to stand and walk across the room and whether his slow, halting gait was his regular way of walking (it is).
I then asked about the sleep apnea and my client’s difficulty staying awake during the day.
I concluded my direct examination by asking my client about his frustrations with not being able to work and I concluded by asking him why he could not preform a simple, entry level job.
The judge asked a few follow-up questions then turned to the vocational expert. The VE identified my client’s past work as:
Assistant manager of retail store + loading and unloading of merchandise – Heavy, semi-skilled
Customer service representative – Light, skilled
Restaurant manager – Light, skilled
The judge then asked the following hypothetical question:
Q: Assume an individual who is the same age as the claimant, with the same level of education and same work experience. Assume further that he is limited to sedentary work with the following limitations:
- he should avoid ladders, ropes & scaffolds
- he should avoid all climbing
- no crawling, crouching, stooping or kneeling
- occasional balancing
- uses cane to ambulate
- should be able to sit or stand at will
- overhead reaching, pushing and pulling limited to occasional
- avoid extremes of heat and cold
- poor capacity to maintain a schedule
- poor capacity to maintain attention and concentration due to nerve pain arising from diabetes
Could such a person perform the claimant’s past work?
Could such a person perform any type of competitive work?
The judge then stated that he would enter a fully favorable bench decision based on our amended onset date.
Conclusions: this is a case that 90% of the judges I see on a regular basis would have denied. The medical record was inconclusive and the consultative evaluation was not supportive. In this case, however, the judge obviously found my client to be believable and credible.