Claimant: 43 year old male
Past Work: lead chef, cook, kitchen helper, telephone sales, construction laborer
Education: left school in 10th grade, but obtained GED. Completed 1 course in culinary school; started a second course but did not complete
Hearing info: my client filed for benefits in January, 2009, alleging an onset date in March, 2008. The hearing was held in September, 2010.
Background: My client alleged disability based on bi-polar disorder and depression. He contends that he experiences weekly episodes of extreme depression where he can barely function and often stays in bed for days. He contends that his sleep patterns are very poor – he may stay awake for three or four days at a time, or he may sleep for 48 hours straight. He states that his short term memory is poor and that he has trouble concentrating or performing tasks in a timely manner. Although he has extensive training and experience as a chef, he no longer cooks because he burns dishes or forgets ingredients. He also reports anger control issues arising from his frustration about his living situation. My client has been compliant with medical treatment and regularly sees his psychiatrist and therapists. He consumes significant doses of psychotrophic medications.
My client’s long time girlfriend corroborated his assertions. She handles his day to day affairs and gives him structure in his life.
Prior to late 2002, my client worked steadily and successfully. In the early 2000’s he experimented with drugs – mainly marijuana and cocaine and he became involved in selling drugs for which he was arrested. He served three years in state prison during which time he reports that he was heavily medicated and that he was unable to engage in cooking. He reports that upon his release he contacted the employment service with whom he had previously worked and that they placed him in a banquet cooking job, but that he was unable to perform this job because of anxiety and memory issues and left after 2 days.
Since this unsuccessful work attempt in the spring of 2005, my client has not attempted any work.
Hearing Strategy: I felt that overall this was a good case, although not without some issues. On the positive side, I had a claimant was a solid and consistent work history, on-going mental health treatment that documented a chronic problem, and a consultative evaluation report from a psychologist on SSA’s panel who identified several significant activity limitations that would impact work. On the other hand, my client had documented street drug use in his past, and a three year period of imprisonment.
This case also struck me as somewhat unusual in that my client’s bi-polar symptoms seem to have become much worse during his incarceration although there is no reason why this is so. In other words, there was no physical or emotional trauma that would explain the rapid deterioration in my client’s mental state other than, perhaps, a sudden change in his medications in the prison hospital, and the inherent trauma of finding himself in prison for three years. Perhaps the most important wildcard was the judge – this was a new judge who I had never seen before and I did not know how she ran her hearings or whether she tended to approve more or fewer cases. As of the date of the hearing, the SSA database showed that this judge had decided only 10 cases, and she approved all of them, but 10 cases is too small of a sample to draw any conclusions.
Hearing report: My client and I entered the hearing room and the judge greeted us in a friendly fashion. She introduced the vocational witness and the hearing assistant then started the hearing. Overall, I felt that the judge conducted a very thorough and comprehensive hearing, perhaps even to the point of overkill. If I had been the judge in this case, I would have been concerned about three things: 1) did the claimant appear credible – were his responses to questions and body language consistent with the limitations shown in the record; (2) was there still a drug use issue and was the claimant truthful about his past drug use; (3) were there any outstanding medical records that might have painted a different picture.
These issues would have warranted a 20 minute hearing – my experience has been that newer judges tend to spend a lot of time going over a claimant’s work history and medical issues even when those issues are clearly established by the record. As the attorney, I have no choice but to generate a thorough record to protect my client’s interests in the event of an appeal. I hope that as this judge gains experience she will feel comfortable speeding up the adjudication process and focusing in on areas of concern and areas where the record is thin or contradictory.
Because the judge did not narrow the issues, I conducted a very comprehensive direct examination, staring with my client’s past work, his medical history and his current status. We also discussed his drug use and incarceration, as well as several contributory medical issues that, on their own, were not debilitating did help complete the medical picture.
After my direct examination the judge asked additional questions – all told, the questioning of the claimant lasted for over an hour, which is longer than normal in a Social Security hearing.
After taking testimony the judge turned to the vocational witness, and asked the following questions:
Q: Please identify the claimant’s past work.
A: Past work:
- Kitchen helper – medium, unskilled
- Chef – light, skilled
- head chef – light, skilled
- cook – medium, skilled
- telephone solicitor – sedentary, semi-skilled
There are no transferrable skills to lower exertional levels in this job history
Q: Hypothetical question 1: Assume an individual the same age as the claimatn with the same education and work experience. Assume he could perform a full range of exertional work (in other words, he is not limited physically). Assume further:
- he must be limited to simple, routine, repetitive tasks
- he is limited to occasional interaction with the public and supervisors
- Could he perform past work?
A: he could perform the kitchen helper job but not the other past work because those jobs are skilled and semi-skilled occupations which require more than simpl, routine, repetitive tasks
Q: Hypothetical II: Assume an individual who could perform the full range of exertional activities, and:
- must avoid concentrated exposure to unprotected heights
- must avoid operating hazardous equipment
- must avoid unprotected heights
- is limited to simple, repetitive tasks
- must avoid fast paced production environments
- is limited to simple work that does not require decision making
- is limited to jobs in which there are few changes during the workday
- contact with the public and co-workers is occasional (no more than 1/3 of the day)
A: This hypothetical individual could not perform past work because all past work is fast paced. There are other jobs that are both medium, unskilled and light, unskilled (the VE then listed those jobs – including day worker, housekeeper cleaner and checker II)
Q: Hypothetical III: Assume hypothetical I but add the following:
- due to symptoms of mental illness, this person would be absent 3 or more days per month
A: Such a person could not perform either past work or any other work
Q: Hypothetical IV: Assume hypothetical I but add the following:
- this person would experience frequent interruptions during the workday due to mental health related symptoms
- this person has a “poor” level of concentration
- this person would have a “poor” capacity to interact with others
- this person has a “poor” capacity to withstand normal stresses in a work environment
A: Such a person could not perform past work or any other work
The judge then asked me if I had any questions for the vocational witness. Because the judge’s 3rd and 4th hypothetical questions included the limitations I would have asked about, my response was “no.” The judge then thanked the claimant for coming and closed the hearing.
Summary: I felt that this was a good enough case such that 90% of the judges who would have considered the evidence would have approved this case. If the judge incorporates either Hypothetical question 3 or 4 into her decision, we will prevail. I felt that my client did a good job in answering questions truthfully about his past drug use and his description of his limited daily activities seemed credible to me.