Claimant: 47 year old male
Past work: electrician, dump truck driver, tank truck driver, tractor trailer truck driver, material handler, construction worker, landscape laborer
Education: completed 10th grade + GED, then licensed as master electrician
Hearing info: My client filed for benefits in May, 2008, alleging an onset date in October, 2007. The hearing was held before a judge well known to me in the fall of 2010. This judge is always very polite and always prepared – I have always found him to be fair – his approval rating per the ALJ disposition database is about average – he approves slightly less than two thirds of the claims he considers. I advised my client that he could expect a fair hearing.
Background: my client had a strong work background performing mostly physical work. He had several significant medical issues including:
- severe back pain – originating from a fall from a ladder and supported by MRI and x-ray reports showing disc involvement
- severe knee pain – total knee replacements in both knees had been recommended by his doctor
- coronary artery disease – he had undergone a 4x bypass in 2006 and complained of chest pain and shortness of breath
Factors not in our favor included:
- medical records that suggested that my client was “stable” and not in great distress, with “moderate” problems for his various ailments
- despite specific instructions from several of his doctors my client continues to smoke at least 1/2 pack of cigarettes per day
Factors in our favor included:
- we had a very supportive functional capacity evaluation form
- a consultative evaluation (by a treating doctor) identified two significant vocational issues having to do with reliability and meeting production goals at work
- there was no suggestion of malingering or drug seeking behavior
- my client’s medical issues were confirmed by diagnostic testing – this was not a case of “undifferentiated pain.”
- our medical record was complete and documented regular treatment
- my client came across to me in our pre-hearing meeting as a truthful, credible witness
Hearing strategy: I thought this was a good case because of my client’s strong work history, the objective nature of his medical issues and because of the support in the form of a functional capacity form from his treating pain doctor. Although my client tended to want to talk about his chest pain, I felt that his back pain and knee pain were probably more important to a disability determination because the cardiologist did not identify current severe problems.
Hearing Report: the judge opened the hearing by introducing himself and the vocational witness. He confirmed my client’s identity and accepted the exhibit file into evidence, then he turned the questioning over to me.
I started my direct examination by reviewing my client’s past work and his long work history. I also asked him about his work attendance and elicited testimony about his willingness to work when hurt. I had him explain that he had left his last four jobs because he was physically not able to perform those jobs.
After discussing his past work in detail, I turned to the medical issues. I started with the knee problems and had my client explain his multiple knee injuries, all of which arose from his heavy labor work. He also testified that multiple pain medicine injections did not help and that but for financial issues, he would have undergone surgery for knee replacements on both knees.
We then turned to the back and hip problems and I had him explain how he hurt his back, how even minimal activities would cause pain and numbness and how he found himself using strong narcotic pain medication daily to try to control the pain. I asked him about various physical activities – walking, standing, sitting, lifting – he was unable to engage in any of these activities for more than 30 to 40 minutes.
I then turned to the heart issues and had him explain about his chest pain and that his cardiologist was concerned about recurrent blockages and the possibility of a serious heart attack or stroke.
The judge did not have any followup questions and he turned to the vocational witness.
The judge first asked the vocational witness to describe my client’s past work, which she did. She also testified that his past work generated no transferrable skills to a lighter exertional level.
The judge then asked the following hypothetical question:
I. Assume a hypothetical individual the same age as the claimant and with the same education and work history. Assume he is limited to “light” work with the following limitations:
- occasional pushing and pulling using the lower extremities
- occasional climbing, kneeling and crawling
- frequent balancing, stooping and crouching
- frequent capacity to engage in overhead lifting using the upper extremities bilaterally
- Based on this could the hypothetical person return to past work?
Q: Would there be any other work?
A: Yes – and she identified several unskilled light jobs: parking lot attendant, marker and labeler, and office helper
Hypothetical II. Assume the same limitations as hypothetical quesiton #1, but add the limitations contained in the pain doctor’s functional capacity with specific emphasis on the following limitations:
- would need a job that permits shifting at will between standing and sitting
- could stand and/or walk for less than 2 hours in an 8 hour day
- could sit no more than 4 hours in an 8 hour workday
- would need to lie down because of pain during a workday
- would likely miss 3 or more days of work per month
Q: Based on these limitations, could the claimant perform any of the jobs identified in hypothetical #1 or any other work?
A: No, because hypothetical II describes less than an 8 hour workday
The judge then ended the hearing.
Summary: the judge will approve this case. My client came across as credible because of his work history and because he has several well documented medical problems. The judge asked the first hypothetical to establish that my client could not return to past work – this is Step 4 of the “sequential evaluation process.” If the answer to past work is “no,” then the burden of proof shifts to SSA and the second hypothetical contains the limitations that the judge will apply in his findings.