Summary: this case involved the claim of a 61 year old male with diabetes, chronic heart failure and vascular deficiencies in his lower extremities
Client profile: 61 year old male
Education: college educated
Past work: in the early 1990’s, my client worked as a data processing manager for a large corporation. He was laid off due to downsizing and was unable to obtain work as an executive. Instead he took jobs as a short order cook, a pizza delivery driver and as a retail sales associate. When considering a claimant’s vocational profile, Social Security judges generally consider a claimant’s past work over the 15 years prior to the onset of his disability. In this case, my client’s past work more than 15 years ago was much different than his work during the past 15 years but the judge and vocational witness only considered work during the past 15 years.
Claim background: my client filed for disability in March, alleging an onset date in February, 2007. A hearing was held in the Atlanta area in August, 2012.
Medical background: my client’s medical record reflected several chronic problems. He is a diabetic, and became insulin dependent around 2003. He testified that many of his chronic medical problems date back to the time when he became insulin dependent. In 2007, my client was hospitalized for a non-healing injection in his leg caused by circulation problems. In 2010, he was treated by a cardiologist for chest pain and discomfort. As of the August, 2012 hearing date, he does not have recurrent chest pain or palpitations anymore but he continues to experience severe swelling in both legs (which are also quite discolored) and in order to avoid infection he must keep his legs raised and extended at least half of the day. Further, because he has been prescribed diuretics to help reduce swelling, he must urinate every 30 to 45 minutes. He also complains of fatigue and testified that he nods off frequently during the day when he is laying in his recliner.
Factors in our favor:
- my client has a long and consistent work history
- my client’s vascular problems are chronic and well documented
- my client is over the age of 50
- the judge assigned to our case is more likely than average to approve cases
Factors not in our favor:
- my client is well educated and has skills to perform non-physical jobs
- his cardiac problems have been stabilized
- his diabetes is somewhat stabilized
My strategy: I have always done well with vascular disease cases. Judges usually recognize that a person with poor circulation, chronic heart issues and swelling that requires raised legs and diuretics would have a difficult time performing work in a competitive work environment. I felt that we needed to focus on the amount of time my client would need to keep his legs raised and the number of bathroom breaks he would need as these two factors cause significant vocational limitations.
Hearing Report: my client and I entered the hearing room and were greeted by the judge. He accepted the medical exhibits into the record and swore in my client. He asked for an opening statement and I described my client’s medical history in detail. I emphasized that the ongoing issues that impacted his work capacity were the vascular deficits and the need to take excessive bathroom breaks, and his long and productive work history.
The judge then questioned my client thoroughly. As I expected the judge asked my client to specify the amount of time he needed to keep his legs raised and what would happen if he did not. My client came across as very credible, especially when he testified that his problems were mostly in the lower body and that his upper body strength remained.
One issue that did come up – my client testified that he left his last job in February, 2007 under a Family Medical Leave basis to care for his wife, who had suffered a heart attack. Upon questioning from the judge, my client stated that it was not until January, 2008 that his medical condition deteriorated to the point where he could not have returned to an 8 hour job.
In my experience, claimants help themselves by not trying to say that they cannot function at all – my client did a good job testifying that he could walk and sit for short periods of time but that his limitations arose from the duration of his capacity in these areas. Further, my client testified truthfully about the appropriate dates for his onset. This later onset date will not impact his financial recovery but it does paint him as more believable.
After taking testimony from my client the judge turned to the vocational witness and asked her to classify my client’s past work. The only oddity about this testimony was the VE’s assertion that my client had been a “food service manager” which is a light, skilled position.
Next the judge asked the following hypothetical question:
Q: Assume that we are considering the work capacity of an individual who
- can stand for a total of 1 to 2 hours during the day
- can sit for a total of 1 to 2 hours during the day
- 50% of the time must keep his legs raised
- frequently experiences episodes of drowsiness
Based on these limitations could such a person return to the claimant’s past work or to any other job?
A: “No, these limitations would exceed what is acceptable in a competitive workplace.”
The judge then announced that the hearing was closed and thanked us for coming.
Conclusions: Based on the vocational expert’s testimony and my experience with this judge, we will get a favorable decision. I think that the most important factor here had to do with my client’s need to keep his legs raised above heart level to avoid swelling and infection. Social Security accepts that this type of accommodation is excessive and would therefore disqualify a claimant from competitive employment.
This case was also a little unusual in that I did not say much at all after giving my opening but the point of these hearings is to win benefits for my clients not to hear me speak!