Summary: 52 year old female with slowly progressing multiple sclerosis, urinary incontinence, depression and cervical stenosis.
Client profile: my client is a 52 year old female with a high school education and 2 years of college. Her past work was as a bookkeeper for a retail store. She currently operates an Ebay business but earns less than $500 per month.
Claim background: my client filed for disability in July, 2015. Her hearing was held in an Atlanta area hearing office in July, 2018.
Factors in our favor:
- my client is over the age of 50
- one of my client’s medical issues is bladder urgency and incontinence. These issues tend to result in favorable decisions.
- my client also has a multiple sclerosis diagnosis. Judges recognize that this condition tends to get worse over time and that it can be debilitating in many respects.
Factors not in our favor:
- the file reflects some alcohol and drug use. My client contends that her substance abuse arose from depression about her medical conditions but anytime I see substance abuse, that is a potential problem
- part time work can be seen by some judges as evidence that a disability claimant has the physical and mental capacity for work.
My strategy: Because bladder control and incontinence issues tend to resonate with Social Security disability judges I thought I would have my client put a lot of emphasis on these issues during her testimony.
Hearing Report: the hearing notice identified a judge that I have been before in the past and who is fair. However, when we entered the hearing room a different judge was there. This is not necessarily a problem but this is the second time in the past month where this has happened.
Every judge has her or her practices and when I prepare and prepare my client, I do so based on who the judge is. In this case the judge who presided seemed very pleasant but I would prefer that SSA not do this.
After swearing in the vocational witness and the claimant, and accepting the case file into evidence, the judge asked me for a brief opening statement. Before doing so, I advised the judge that we wanted to amend our onset date. My client has used a date in 2009 (when she was first diagnosed with multiple scleorsis) but she had worked at SGA level since that time. Additionally, I wanted to take the substance abuse issue out of play so, after talking to my client, we chose an amended onset date after her sobriety date.
I began my opening by explaining that my client was diagnosed with multiple sclerosis back in 2009 and that her condition has been slowly deteriorating since then. I noted my client’s long history of reporting her bladder incontinence to her doctor and noted that since the amended onset date, she has had 2 surgeries on her bladder – the first reduced the incontinence significantly but the second did little to change the urgency problem or totally eliminate the incontinence. I noted that my client was able to maintain her Ebay business by controlling her environment and working a few hours per day at home.
After asking a few preliminary questions, the judge turned the direct exam over to me. I began by having my client testify about her M.S. diagnosis and how her symptoms have been progressing. She testified that at times she might wake up unable to see, or unable to walk, but the symptoms would resolve with medications.
She explained how frustrating and depression this deterioration has been for her and how she has had to rely on family members for daily household activities like shopping and cooking.
We then turned to the incontinence issues and my client explained that she has been struggling with bladder control problems for several years (since before her alleged onset date) and she detailed the practical problems associated with urinary urgency (need to get to a bathroom immediately), frequency (several times per hours) and incidents of accidents (several times per week).
My client also testified about her frustration and depression and how her M.S. and bladder issues have impacted her daily activities, relationships and thoughts about the future.
The judge had a few follow-up questions and then turned to the vocational witness with several hypothetical questions:
1. Assume an individual who is the same age as our claimant with the same education and work history. Assume further that this individual is limited to sedentary work with:
– occasional climbing ladders, ropes and scaffolds
– occasional bending, balancing, stooping, crouching, crawling and climbing
– avoid hazardous machinery and extreme vibration
– occasional overhead reaching bilaterally
– wears an adult undergarment but this does not impact productivity
– frequent fingering, grasping, handling with the right dominant hand
– no jobs involving constant change or crisis situations
– jobs need to be routine and repetitive involving simple tasks
Could such a person perform the claimant’s past work as a bookkeeper?
Are there other jobs in the national economy such a person could perform?
A: this person could be a table worker (DOT # 739.687-182 – this is a sedentary, unskilled job
2. Assume the limitations set out in hypothetical #1 but add:
– this person would miss 4 or more days per month
A: this would preclude all jobs
3. Assume the limitations set out in hypothetical #1 but add:
– this person would be off task 15% of the workday?
A: this would preclude all jobs
The judge then adjourned the hearing and advised use that she would get a decision out as soon as possible.
Conclusions: the judge’s decision in this case will turn on how she evaluates my client’s incontinence issues. Will she believe my client’s testimony about frequency and urgency? What evidentiary value will she place on the two surgical reports and associated treatment. Will my client’s past substance abuse damage my client’s credibility?