Claimant: 49 year old female
Past work: retail order filler for towel manufacturing company and sewing machine operator. Consistent work since late 1970’s
Education: high school graduate
Hearing Info: the claimant applied for disability in October, 2005, alleging disability beginning in June, 2005, her last day of work. The judge in our case is local to the Atlanta Office of Disability and Review. He has only been on the bench here for a few months, and this is my second hearing before him. I do not yet have a sense of his approach to disability claims. My colleagues here in Atlanta consider him to be fair and reasonable.
Hearing Strategy: in reviewing the file, the issue before the judge seems fairly clear to me: is the damage to my client’s spine severe enough to support her claim of total disability. On the positive side, there is objective evidence of back problems. My client has undergone several MRI and x-ray studies, all of which document degenerative disc disease with disc bulges at at least two levels. A 2005 MRI shows a mild herniation, although currently it does not appear that there is much in the way of spinal cord compression or stenosis of the spinal canal. In addition, I have a very strong functional capacity form completed by the claimant’s long time family doctor. This form includes several reliability limitations that, if accepted, would support a fully favorable decision.
On the other hand, the objective evidence in the form of the MRI’s and medical treatment, reflects degenerative disc disease that is not severe. As noted, the MRIs show disc bulging as opposed to a really bad herniation. Several of the treating doctors have noted that my client’s condition does not yet warrant surgery and her only treatment to date has been one hip injection, physical therapy and pain medications.
There are also some foot issues, but this case is going to boil down to whether the judge believes that my client can function in a simple, unskilled, sedentary job with a sit/stand option.
Hearing summary: the judge opened the hearing by greeting the claimant and me as well as the claimant’s husband. I generally don’t need witnesses in cases involving physical impairments, but the husband was well spoken and I felt that I wanted him available in case my client got nervous and forgot to bring up some of her limitations. Normally, a witness will be kept outside during the claimant’s testimony, but our judge had him come in and allowed him to hear his wife testify.
The vocational witness was late – he did not show up until literally my last couple of questions of the claimant. Interestingly, the judge did not swear in the vocational witness prior to his testimony, which, in theory, would be a grounds for appeal if we lose.
The judge made his introductory remarks than asked me to present my case. I started by reviewing my client’s job history, then we went into why she left her last job. We discussed her medical condition and I asked her several questions designed to show that she would not be able to get through a full workday. She testified that she could sit for 10 to 15 minutes before needing to stand and stretch and that she could repeat the standing/stretching routine for 3 or 4 times, after which she would need to lie down.
After taking testimony from the claimant, I asked the husband a few questions about the changes he has seen in his wife and her capacity for performing household duties. His testimony, not surprisingly, was consistent with hers.
The judge then turned to the newly arrived vocational witness and asked him to describe the claimant’s past work, which he identified as medium and low end semi-skilled.
The judge then asked 2 hypothetical questions, both of which contained very minimal limitations. The first question asked whether any jobs existed in the economy for an individual limited to light, unskilled work, and the second question asked whether there were any jobs that existed for a person limited to sedentary, unskilled work. Obviously the answer to both of these questions was “yes,” and the vocational witness proceeded to name several.
The judge then turned to me and I asked the vocational witness what was the policy of employers of unskilled workers towards absences from work. The vocational witness responded that a such an employee could not miss more than 2 days per month. I then asked about unscheduled absences, and his response was that few if any unscheduled breaks would be tolerated. I asked these questions because the functional capacity form I had submitted from the claimant’s treating doctor asserted that she would likely miss more than 3 days per month and need to take multiple unscheduled breaks from work.
Summary: if the judge accepts the family doctor’s functional capacity form, we will win. If the judge’s very non-severe hypothetical question reflects what he is thinking, we are not going to win. I’ll update this case study when I have the results.