Summary: this case involved the claim of a 62 year old woman alleging disability based on back pain and migraine headaches. This case was approved based on the grid rules.
Client profile: 62 year old female
Education: 8th grade
Past work: working supervisor and circuit board assembler, and nanny
Claim background: my client filed for benefits in April 2011 alleging an onset date in April, 2003. Her date last insured for Title II benefits was on December 31, 2008. A hearing was held in August, 2012.
Medical background: my client has treated with the same primary care physician since 2002, and this family doctor is very supportive of her claim. The medical records themselves are handwritten and difficult to read prior to 2011. Most of the medical record reflect treatment after 2011. There are no MRI or CT reports documenting specific disc problems although the primary care doctor completed a functional capacity evaluation that describes severe and debilitating degenerative disc disease. The primary care doctor also describes frequent and severe migraine headaches along with anxiety and depression. My client did start treating with a psychiatrist in 2011 and a therapist working in the psychiatrist’s office did complete and supportive functional capacity evaluation. There are also two psychological consultative evaluations in the file which document moderate mental health problems and a physical consultative evaluation which describes very mild physical limitations.
Factors in our favor:
- long, continuous work history
- strong support from a long time treating physician
- my client is currently age 62 and was 58 years old as of the date last insured
- the judge assigned to this case is very reasonable and open minded
Factors not in our favor:
- functional capacity forms from the long time treating family doctor seem somewhat out of proportion to the level of impairment described in the treatment notes
- no MRI or CT support or evidence of disc involvement for claims of back pain
- very little medical documentation dating back to date last insured – most of the medical record starts in 2011
My strategy: I felt that my best strategy in this case was to argue for disability under Grid Rule 201.02 which would result in a finding of disabled for an individual limited to sedentary work, who is age 55+, with less than a high school education and no transferrable skills. Under this theory I would need the vocational witness to testify that neither then nanny job or the circuit board assembler/supervisor produced any transferrable skills. In the alternative, Grid Rule 202.02 would result in the same result if the claimant was limited to light work.
If the judge did not feel that the medical evidence documented physical impairment limiting the claimant to light or sedentary, my next option would be to argue that the combination of migraine headaches and back pain caused such an erosion of my client’s functional capacity that she would not be able to perform any competitive work.
Hearing Report: prior to the case starting the judge sent his hearing assistant out to call me in for a “pre-hearing conference.” During this meeting the judge asked me to set out my theory of the case and to address the onset date, the state of the medical record, and date last insured issues. We discussed the claimant’s past work and agreed that a threshold question concerned the circuit board assembler/supervisor job – could she return to that job and/or were there any transferrable skills to unskilled work.
The judge then asked me to bring my client in and we started the hearing. After swearing in the my client and the vocational witness, the judge asked my client about her work as a circuit board assembler, which she described as sitting for 4 hours and standing for 4 hours during the day, and lifting less than 5 lbs.
The judge then turned to the vocational witness who described the claimant’s past work as:
- nanny – medium work, low end-semi-skilled
- group leader, printed circuit board assembler (DOT: 726.361.014 – light, skilled)
The judge then turned to me and stated that in his mind the issues at hand were:
- could the claimant return to the circuit board assembler job; and
- if not, were there any transferrable skills that would allow for sedentary work
He asked me to question my client about her medical issues. I proceeded to ask my client to describe the following medical problems:
- migraine headaches
- back pain
- bladder and bowel incontinence
- anxiety and depression
My client testified that each of these issues caused her severe pain and/or was very symptomatic. Essentially if my client was found credible regarding her testimony about any of these conditions, the judge would find that her functional capacity would not permit competitive work.
I got the sense that the judge wanted to exhaust the grid argument and not reach the functional capacity question because the medical evidence was not compelling. Judges, especially in 2012, are reluctant to approve cases based primarily on testimony and I could tell that the judge was not impressed by the medical evidence.
He turned to the vocational witness and asked the VE to consider the conclusions of one of the consultative psychologists, who stated about my client that:
She is able to follow simple directions. She may sometimes have problems with instructions that are lengthy, detailed or where time limits are involved. She is able to relate to people in her family and neighborhood. However her social interests and activities seem limited due to limited interpersonal skills, chronic pain, and depression. She appears capable of handling simple financial actions like buying groceries. However, complex banking transactions, e.g., lease agreements and maintaining a budget or check book, may be a problem for her.
The judge asked the VE to consider the claimant’s capacity to perform low end skilled work in light of the consulting psychologist’s conclusions.
The VE testified that a circuit board assembler would be expected to produce multiple complete and accurate copies of circuit boards during the course of a workday and that a person who did not have the ability to stay focused during the performance of a tedious job because of an unstable mood would not be sufficiently reliable to perform that job. Thus, in his opinion, my client could not perform the group leader/assembler job.
The judge then asked if there were any transferrable skills to light or sedentary work. The VE responded that her skills would only transfer to other skilled jobs at the medium or light exertional level.
The judge then stated that he could accept the grid argument but that he needed some evidence that my client’s condition dated back to 2008, prior to the date last insured. He noted that my client had filed for disability in 2003 but did not appeal, thus as of October, 2004, Social Security’s denial functioned as a final decision as of that date. As such, the judge could not consider evidence before October, 2004. The question, therefore – was there evidence of disability during the time period of October, 2004 through December 31, 2008 (the date last insured)?
Fortunately I had reviewed the record and I was able to identify two doctor visits with my client’s long time treating physician – one in 2007 and the other in the spring of 2008 that described her complaints of back pain and migraines. The judge looked at the records and concluded that he could live with these records and would approve as of the spring, 2008 date.
The judge closed the hearing and he even took the time to compliment me on my advocacy on behalf of my client, noting that he was leaning against approving this case but my argument changed his mind. He also noted that I acknowledged the weaknesses in my case in terms of a pure functional capacity argument, but still presented a credible argument under the grid rules. Judges don’t often make these types of comments and I was happy to hear them!
Conclusions: the judge felt more comfortable with the grid rules than with a functional capacity argument. I think he felt, and I don’t disagree, that the medical record was not compelling enough to document disability, but it was sufficient in light of the reduced requirements inherent in the grid rules.