Summary: 58 year old male alleges disability based on chronic back pain and sleep apnea
Client profile: 58 year old male with college education and 14 year past work history as a regional airline fleet manager
Claim background: my client filed for benefits in June, 2014. A hearing was held in an Atlanta hearing office in February, 2015. My client has a 100% VA disability. It is interesting to note that his hearing was scheduled within a year of his disability application.
Factors in our favor:
- my client had a long, consistent work history
- the judge in our case has a higher than average approval rate
- my client has undergone two back surgeries and his treating surgeon supports his claim for disability
Factors not in our favor:
- we did not have a completed functional capacity form
- my client has learned to manage his pain levels by limiting his daily activities
My strategy: I felt that we had a very strong case based on the medical record. My client was very focused on his sleep apnea and in our pre-hearing meeting I encouraged him to speak more about the back pain issues than the sleep apnea.
Hearing Report: my client and I entered the hearing room and were greeted by the judge. After introducing the vocational witness and accepting the medical record into evidence the judge asked me for an opening statement.
In my opening I focused on my client’s long and consistent work history and his efforts at continuing to work even after cervical spine surgery in 2009, rotator cuff surgery in 2011and lumbar surgery in 2014.
I pointed out that my client had a 100% VA rating and that his spinal issues most likely arose from his military service where he piloted helicopters that vibrated vigorously.
I explained that despite his surgeries, he experiences numbness and tingling in his arms and in his legs and that his capacity to perform any function was limited to, at most 60 to 90 minutes at a time and perhaps 2 to 3 hours total during a typical day.
The judge then asked me to question my client. I started by asking my client about his military service and establishing the background for his on-going physical problems. We discussed his work and the onset of his physical problems – starting with his cervical pain and surgery, rotator cuff issues, gall bladder problems, sleep apnea and eventually the lumbar surgery and referral to long term pain management.
I then asked my client specific questions about his capacity to sit, stand, walk, lift, carry and use his hands (we had gone over this in detail prior to the hearing). My client testified effectively and came across as a hard working man whose body was gradually giving out.
The judge followed up with a few questions then turned to the vocational witness. The VE identified my client’s past work as a flight control manager, which is a skilled, sedentary (sit down) job.
The judge then asked the following hypothetical question:
Assume a hypothetical individual who is the same age as our claimant with the same education and work background. Assume further I find:
- he can lift 10 to 15 lbs. occasionally
- he can stand and/or walk for 2 hours total in an 8 hour work day
- he can sit for 4 hours total in an 8 hour workday
- he would need a job that allows for alternating sitting and standing
- no repetitive turning of the neck
- occasional pushing and pulling
- occasional climbing stairs
- no climbing ladders, ropes or scaffolds
- occasional balancing, kneeling, stooping, crouching and crawling
- occasional overhead reaching
- frequent handling, fingering
- no work at unprotected heights
- no work with hazardous machinery
- no work involving vibrating equipment
- due to symptoms of his impairments this person would be off task up to 10% of the workday
Could such a person perform past work?
A: No
Are there any transferrable skills from past work to this functional capacity profile?
A: No
The judge then announced that he would be issuing a favorable decision based on Grid Rule 202.06.
Conclusions: the judge will approve this case. He could have issued an approval based on my client’s impaired functional capacity. Instead he chose to rely on the grid rules to issue a favorable decision.
