January 18, 2020

Case Study 2

This case involved the claim of a 38 year old female who had graduated high school and had also attended some college.  Her allegations of PTSD arose from longstanding abuse when she was a child.  She also had physical problems in the form of arthritis in her hip and knee, complicated by significant obesity.   Here are my notes and observations from this hearing.
–Jonathan Ginsberg, Attorney – Atlanta, GA

Claimant: 38 year old female with high school diploma and junior college degree

Past work: my client’s most recent work has been as a home based call center telephone operator.  Prior to that she worked as a customer service representative, as a secretary at a bank and as an assistant to an executive assistant

Hearing info: this was a hearing for SSDI benefits held before a judge who was not phsically in the hearing room but who appeared by video.  One twist – my client has been working part time at home for a company that provides customer service to various retail stores.  Her earnings in 2009 exceeded $10,000 and there were several months in 2009 in which her earnings were above SGA (substantial gainful activity) levels.  As of the date of the hearing, she was not working as her reliability had become a factor and she quit when her hours and pay were reduced.  I have had several hearings before this particular judge and I have always found him to be well prepared, thoughtful and fair.

Medical Background: my client has a variety of mental health and physical problems that are relevant to determination of her capacity to work.  Mentally, she has been diagnosed with PTSD and depression arising from chronic sexual, emotional and physical abuse at the hands of her father when she was a child.  Physically, she is grossly obese, weighing over 400 lbs.  In addition she has significant arthritis on her right side, arising in part from an automobile accident several years ago that resulted in the insertion of rods and pins which were subsequently removed.

Hearing report: as noted above, the judge in this case is a no-nonsense, bottom line type of person.  He opened the hearing by swearing in my client and the vocational witness (who was with us live at the hearing office).  He then asked me for my argument for disability.

I responded by identifying the mental health diagnosis and I pointed out the physical issues.  I specifically noted my client’s size and the difficulty she had fitting in the hearing office chair (remember, the judge in this case was in another state and could not see my client’s struggles to fit into the small hearing room).  I argued that because of her PTSD and depression, she had a hard time relating to others or to trust others.  I pointed out that she had at least 3 suicide attempts over the past 20 years.  I noted that she was motivated to work and, in fact had been trying to work part time at a home based job that had eventually become too much for her.  The judge had noted the earnings for past years but was not aware that my client had been working at home.

The judge then stated that he felt that the record was fairly clear and that he wanted to question the vocational witness.  Let me point out that this type of action is somewhat unusual in that a judge potentially opens himself up for appeal if he does not give a claimant her day in court.  Usually this “short-circuit” of the process means that the judge is inclined to approve the case.

The judge then turned to the vocational witness and asked her if the claimant’s past work generated any transferrable skills to sedentary work.  The VE identified the following transferrable skills:

  • data entry
  • information clerk
  • order clerk
  • receptionist
  • clerical skills

The judge then posed the following hypothetical:
Assume an individual the same age as the claimant, and with the same education and work background.  She has skills as described in your testimony about transferrable skills.  This person is limited to sedentary work.  She is further limited to:

  • standing and walking for up to 30 minutes at a time
  • total standing and walking for 3 hours during an 8 hour day
  • sitting for up to 6 hours during an 8 hour day with normal breaks
  • occasional climbing stairs and ramps
  • never climbing ladders, ropes or scaffolds
  • occasional kneeling, crawling, stooping and crouching
  • avoid even moderate exposure to hazards such as moving machinery or unprotected heights
  • she would be “off task” for up to 3% of the workday (14 minutes)
  • no high production work
  • no high stress work like assembly line work
  • occasional contact with the public (no customer service or retail sales work)

Question: based on this hypothetical, could this person return to any of the claimant’s past work?

Answer: she could perform the administrative assistant work, however I want to verify that the work performed by the claimant was truly administrative assistant work.

The VE then asked the claimant to describe what she did – the claimant responded that she was really an assistant to the administrative assistant – a “glorified go-fer.”  The VE then stated that the hypothetical person could not return to past work.

Note what happened here: my client, when describing her past work on the disability application, overstated her duties and the complexity of her daily tasks.  Generally in Social Security cases, the less skills you have the better and certainly it makes no sense to exaggerate what you have done or could do.

The judge then asked the VE if the claimant could perform any other work.  The VE then described several entry level sedentary jobs.

I think that at this point the judge was becoming frustrated as I believe he felt that his hypothetical was more restrictive than it turned out to be.  He then asked me how I would modify the hypothetical based on my review of the record and conversations with the claimant.

I replied that I felt that the claimant would be off task for 10 to 15% of the day, that not only should she avoid contact with the public, but with co-workers and supervisors as well, and that she would likely experience multiple unscheduled breaks during the day because of emotional instability.

The judge then turned to the claimant and asked her to talk about her emotional problems.  My client replied that she frequently experienced crying spells, that she was very sensitive to criticism from supervisors or co-workers and that even a minor criticism would cause her to burst into tears.  She stated that she did not trust anyone and that she frequently thought about suicide.

The judge then turned to me and stated that he would be prepared to issue a favorable decision if we would amend our onset date.  I stepped outside with my client and she agreed (although I was a little concerned about the arbitrary choice made by the judge).  The judge then issued a fully favorable bench decision.

Summary and Analysis: I think that the issue in this case was a medical record that did not fully support the claimant’s assertions of limited functioning.  I think that the judge was conflicted about how to deal with my client’s part time work.  On one hand, the part time work suggested a motivated claimant who was fighting the idea of being labeled as “disabled.”  On the other hand, working as a home based customer service representative, answering calls from angry retail shoppers suggests that there is some capacity to perform basic clerical work.  I also think that the claimant’s fairly skilled past work and the presence of multiple transferrable skills made this a tougher case.