Claimant: My client was a 58 year old male
Work background: My client had many years of experience as a computer programmer for large companies. His experience was on mainframe computers. He last worked in October, 2001 when he was laid off following 9/11/01.
Education: High school education, two years of college (no degree) and vocational school for computer programming.
Background: I took this case because my client was over 50, had a good work history (3 jobs in the past twenty years and continuous employment) and regular medical treatment. In the intake interview he told me that he had a long history of back pain, going back to childhood. As noted above, his work background was as a computer programer/systems analyst for a large telecommunications company. He advised me that during the last few months he worked, the back pain was becoming more and more severe, to the point where he modified his work station so that he could alternate sitting and standing.
Despite the back pain, he was able to continue working and lost his job in October, 2001 as the result of a company-wide layoff.
In early 2002, my client suffered a heart attack which was treated by angioplasty and medications. The medical record shows that he has had some long term problems keeping his blood pressure under control but that he does not experience on-going cardiac problems.
My client reports that by the late fall/early winter of 2002, his back pain had grown significantly worse, such that he can sit, stand and walk for only 30 to 40 minutes and that his condition gets worse as the hours and days go by. He says that if he was to try to work any type of job, he might be able to get through one day, but he could not envision himself working on day two or three of a work week without needing significant recovery time.
Hearing Preparation: The hearing in this case was held before one of the newer judges who I had appeared before one time previously in a favorable case. Although I don’t have a lot of experience with this judge, she appears to be open minded and fair.
During my hearing prep with this client, I recognized that he was having a difficult time offering clear and direct information. I explained to him that Social Security judges wanted answers to questions like “how much can you lift,” “how long can you walk,” and “how long can you sit.”
My client explained to me that the answer to these questions depended on how he was feeling on a particular day. After going back and forth with him, we decided that I would ask my questions in a form that best tracked the cumulative nature of his symptoms. For example, I would ask my question in the following format:
Q: Imagine you are trying to work as a security guard in the overnight shift at a mall that is closed. Your job is to walk around the mall as part of security detail. When you start this job, you are well rested and as comfortable as you can be. How long can you walk.
His answer: about 90 minutes then I would need to take a one to two hour break lying down.
Follow-up: after this break, could you then return to work.
His answer: yes, for about 45 to 60 minutes, then I would have to lie down again.
Follow-up: how many times could you repeat this cycle?
His answer: no more than 3 times but each time the length of time I could actually work would be reduced.
Follow-up: how about the next day? His answer: because I had worked the day before, I would only be able to walk my first shift for about 45 minutes then take a break
As you can see, this style of questioning is much less direct than “how long can you walk?” or “how long can you sit?”
When the hearing started the judge asked for an opening and I tried to explain that my client had a medical diagnosis of spondylolisthesis which is a degenerative condition where the spinal canal is narrowed when a vertebrae slips out of place. I further explained that my client’s symptoms were cumulative in nature, meaning that he could engage in certain physical activities on day 1, that he would not be able to to perform on day 2.
Hearing Report: When the hearing began the judge asked a number of questions, starting with background information and proceeding to questions about my client’s functional limitations. As expected she asked specific questions about specific activities (sitting, standing, and walking) and my client tried his best to answer but he had a difficult time trying to describe the cumulative nature of his symptoms.
During questioning from the judge, my client also explained that he was very involved with his church, and that he served as a lay leader for study groups and that he attended a yearly out of town convention. He further testified that he was able to do some housework, including cutting the grass for 45 minutes on a riding lawnmower! He had not mentioned the lawnmower to me previously, nor did he advise me about the extent of his church involvement.
He also testified that he once saw a doctor who said that surgery might be an appropriate treatment for his condition if the pain got too bad.
I did my best to rehabilitate my client when I had a chance to ask the questions we had prepared, but I got the sense that the judge did not find my client to be particularly credible because of the wide variety of activities he was able to do.
I also asked him a “rate your pain” question and, again, I got a lot of “it depends” and “it varies” types of answers.
I should also mention that my client had on-going treatment records from a family doctor and I had obtained a very supportive functional capacity form from that doctor.
There was a physical consultative exam in the file that showed only moderate limitations.
The judge asked only one hypothetical question to the vocational expert – assume a hypothetical person of the same age, education and work background as the claimant and assume he is limited to sedentary work with a sit stand option and moderate postural limitations – could he return to past relevant work. The VE answered “yes.”
I then questioned the VE using the functional capacity form and elicited several “no work” answers.
Overall I did not feel that this hearing went particularly well:
- my client’s testimony was too vague and conditional
- my client is still able to perform a wide range of activities, including a leadership role at his church, regular work on his computer, and fairly extensive house and yard work. Although he did not testify about this, he showed me in our pre-hearing meeting that he designed and programmed an extensive web site for his church including interactive links to Bible verses.
- my client had no failed work attempts and it seemed like he had only thought about work in terms of getting back into the computer programming field rather than less complicated types of work
- my client’s treating doctor is not an orthopedist and his medical notes are very sparse without a lot of discussion about the extent of the back pain.
I am going to guess that the judge will deny this case on the grounds that this claimant’s testimony is not credible or consistent with the very extensive limitations set out by his doctor.