Summary: 64 year old female with degenerative disc disease, but minimal medical treatment, who is working part time was approved for SSDI per the grid rules.
Client profile: my client is a 64 year old female with an associated (2 year college) degree. She previously worked as an usher for a concert venue and as an crafts teacher. She is currently teaching crafts to elementary school age children part time at a school.
Claim background: my client filed for benefits in the fall of 2014. Her hearing was held in an Atlanta area hearing office in June, 2016.
Factors in our favor:
- my client is over 60 years old
- my client’s medical issues are verified by radiographic evidence
- the judge in our case is reasonable
Factors not in our favor:
- my client is working part time
- my client has very little medical treatment over the past 2 years – her treatment has been with a chiropractor and SSA considers chiropractic treatment as “alternative medicine” and gives it little weight.
My strategy: I felt that my client had a good argument for disability based on the grid rules. Grid rule 202.06 provides that a claimant shall be found disabled if she is 55 years old or older, is a high school graduate or more but does not have an education which would provide for direct entry into skilled work, and who has no transferrable skills.
I was also prepared to argue for disability using a functional capacity argument based on CT scans from 2014 and 15 that showed compression fractures and spondylolisthesis (movement of a vertebra that creates pressure on the spinal cord). My client was prepared to testify about chronic pain, episodes of “freezing” of her hip that requires manual manipulation to restore movement and problems sleeping due to pain.
I submitted a pre-hearing brief spelling out my arguments. Click here to read my brief.
Hearing Report: my client and I entered the hearing room and were greeted by the judge. After dispensing with preliminary matters (swearing in my client and the vocational witness and accepting the medical record into evidence) the judge turned the questioning over to me.
I began by addressing my client’s current work status. She testified that she worked approximately 4 hours a day, 2 days per week, and slightly more during a brief summer program. She testified that normally crafts teachers walk around the room to supervise students but that because of her hip and back pain she remained seated and had her students bring their work to her.
She also testified that even this reduced schedule was difficult and that she would not be able to work more hours if available.
We then turned to her medical history, which included a successful bout with cancer and chemotherapy drugs that likely weakened her bone structure. She described several falls in her past that may have also contributed to the compression fractures.
I asked my client to discuss her pain levels and she testified that 3 to 5 times per hour, her hips would “catch” and leave her with excruciating pain that could only be relieved by manually moving her leg up and down until the “catch” released. She explained that pain frequently woke her up at night and that she needed to alternate sitting and moving around to attempt to avoid episodes of sharp pain.
The judge had no follow up questions and he turned to the vocational expert. The judge instructed the vocational expert to assume that the claimant’s current work did not rise to “substantial gainful activity” level. He then posed two hypothetical questions:
1. Assume an individual of the claimant’s age and past work and assume further I find that she can perform medium work with frequent climbing, balancing, stooping, crouching and stooping. Could she perform past work or other work.
The VE responded that based on this hypothetical a person could perform the claimant’s past work along with work as a hand packager, a linen room attendant and a print screen helper.
2. Assume our hypothetical person would be off task 30% of the time due to pain and could sit for 15 minutes at a time, after which she would need to take a 5 to 7 minute break to walk around?
The VE responded that based on these limitations, the hypothetical person could not perform the claimant’s past work or any other work.
The judge then turned to my client and me and indicated that he accepted my grid rule argument and would be issuing a fully favorable decision.
Conclusions: I suspect that the judge had some concerns about the lack of ongoing treatment by a medical doctor. However, the CT reports from 2014 and 2015 describe conditions that do not generally resolve without surgical intervention and my client presented herself as credible and honest. I was concerned about my client’s ongoing working but the judge did not seem bothered by it.