Summary: 39 year old female alleging disability based on schizophrenia, PTSD and bi-polar disorder
Client profile: My client is a 39 year old female with a high school education. Her past work includes server at various restaurants, patient accounts clerk for medical offices and telephone sales.
Claim background: my client filed for disability in March, 2012 alleging disability beginning in 2008. A hearing was held in the Atlanta area in March, 2015. I noted significant work activity after the onset date so I discussed this issue with my client and we agreed to amend the onset date to late winter in 2012.
Factors in our favor:
- my client has had multiple hospitalizations in psychiatric facilities
- the record reflects my client’s assertions that she experiences visual and auditory hallucinations
- the judge in our case is slightly more likely than average to approve claims
Factors not in our favor:
- all of the psychiatric hospitalizations referenced my client’s use of alcohol and/or street drugs. It was unclear from the record if her mental health issues arose from or were incidental to her use of mind altering substances
- the consultative evaluation report suggested that my client was borderline malingering and that she was determined to receive disability benefits
My strategy: I generally find that Social Security judges are receptive to claims for people who have been hospitalized multiple times at psychiatric hospitals. Further, my client often slips into delusional speech – claiming that she was raped by governmental spy agencies and that people who are not there speak to her throughout the day. I felt that if the judge found her delusional behavior credible we had a reasonable shot at winning.
Hearing Report: the hearing in this case was scheduled for 9:00 am and when I spoke to my client the day before she advised me that a friend would be bringing her. My client and her friend showed up at 10:30 – an hour and a half late. Fortunately there were other cases on the docket and the judge agreed to hear our case at 10:30 but certainly my client’s late arrival was noted by the judge.
We entered the hearing room and were greeted by the judge. The judge was appearing by video and his image was fuzzy on the large TV. I have appeared before this judge many times and his hearings usually last only a few minutes. This judge, unlike all the other Atlanta area judges, typically does not use vocational witnesses but apparently he has been appealed on this issue and now does use vocational experts. The VE was not present for testimony but was called to speak about my client’s past work and to answer hypothetical questions.
After accepting the record into evidence the judge asked me for an opening statement. I focused on her multiple psychiatric hospitalizations and her hallucinations. I did reference the substance abuse issues but argued that she was self-medicating and that her mental illness existed apart from her use of drugs and alcohol.
The judge asked a few preliminary questions then turned the direct examination over to me.
I started by asking my client to explain why she lost her past job. She explained that she was working at a fast food restaurant and that a voice told her to give food away, after which she was fired. She explained that she has lost several jobs because of hallucinations and poor job performance.
I asked my client about her symptoms and she explained that she had a difficult time thinking clearly and that she could not differentiate between what was real and what was not. She talked about physical and sexual abuse throughout her life and noted that she had grown fearful of men because of what males had done to her over the years.
We spoke about her suicidal thoughts and the reasons for her hospitalizations. She testified about anger control issues and distracting thoughts that, upon reflection, were abnormal.
I felt that overall my client did a poor job with her testimony. She came across as being fairly intelligent with a great deal of insight into her mental state. This presentation seemed inconsistent with the behavior of a person who has lost touch with reality.
Further, my client’s presentation at her hearing seemed very consistent with the conclusions of the psychologist who evaluated her for Social Security:
Ms. ____ appeared to present her symptoms as more severe than was believed. She was vague and limited in her responses to questions about her psychological functioning and history. She appeared to be trying to convince this examiner of the validity of her psychological symptoms….She may be malingering.
After taking testimony the judge turned to the vocational witness. The vocational witness testified that the claimant’s past work included:
- fast food worker (light, low-end semi-skilled)
- telemarketer (sedentary, low-end semi-skilled)
- medical billing clerk (sedentary, semi-skilled)
None of these jobs result in transferrable skills.
The judge then posed the following hypothetical questions:
1. Assume a hypothetical person who is the same age as the claimant with the same education and work background. This person is limited to medium work. Assume further:
- she is limited to simple, routine, repetitive, unskilled work
- no jobs involving customer service
- no interaction with the general public
- job must be “goal oriented” as opposed to “production oriented”
Could such a person perform the claimant’s past work?
A: No because past work was semi-skilled as opposed to unskilled.
Q: Are there other jobs in the regional or national economy such a person could perform?
A: Yes, here are examples:
- laundry folder (light, unskilled)
- industrial cleaner (medium, unskilled)
2. How many days per week can a person working at an unskilled job miss without losing that job?
A: no more than 1 days per month.
3. What percentage of the time can a person working at an unskilled job be off task because of psychologically based symptoms?
A: Generally employers will not tolerate an employee being off task more than 9% of the time.
The judge then asked me if I had any questions. I confirmed with the VE that a person who was off task 10% of the time because of psychologically based symptoms would not be able to sustain employment.
The judge then closed the hearing and promised to render a decision as quickly as he could.
Conclusions: From my perspective, my client seemed to be very invested in the idea of receiving disability benefits. She frequently referenced events “after I became disabled” and testified that she knows she cannot work because of her symptoms. Overall she did not come across as a believable person. I don’t have any doubt that my client would be a poor employee – the question – is this because of an underlying medical issue or is this reflective of a desire to collect money from Social Security.