Summary: 46 year old female with mild to moderate multiple sclerosis
Client profile: 46 year old female
Education: college education
Past work: skilled work as a bookkeeper, financial analyst and accountant
Claim background: my client filed for benefits in the fall of 2010, shortly after resigning her last accounting job. A hearing was held in a north Georgia hearing office in April, 2013.
Factors in our favor:
- multiple sclerosis is an objectively determinable medical condition
- multiple sclerosis is a chronic condition – current medical science can sometimes slow the symptoms but the disease itself is not curable
- my client has a long and productive work history
- my client has received consistent medical treatment and we had a supportive functional capacity form from a treating neuropsychologist
- the judge in our case was more likely than average to approve cases
Factors not in our favor:
- my client’s MS symptoms were relatively mild – her main complaint was fatigue and mild cognitive impairment
- my client did not appear to be significantly impaired
- at the time of the hearing my client was struggling with the idea of calling herself “disabled” and tended to minimize her symptoms
My strategy: I felt that my best strategy here was to focus on my client’s fatigue and concentration issues as opposed to the MS symptoms of spasticity and mild physical impairment. Often, a diagnosis of MS combined with moderate to moderately severe symptoms is enough to convince a judge but here, my client’s MS was relatively stable. In addition the functional capacity form and associated reports focused mainly on the fatigue issue.
I felt that we clearly had enough evidence to prove that my client could not return to her past work (step IV of the sequential evaluation process) – the question: could we prove that her symptoms would preclude every job.
Hearing Report: the hearing started a few minutes late and the judge was appearing by video from a remote location. He came across as friendly but serious and well organized – it was clear from the outset that he had reviewed my client’s file carefully.
I had submitted a pre-hearing brief in this case so I did not make an opening statement. The judge started his questioning in an interesting manner – he asked my client about several medical issues that she had listed in her application but that for purposes of this case were not especially important. For example, my client had mentioned in her application that she had a mass in her breast. This mass turned out to be benign and there are no functional limitations arising from it. The judge did this to eliminate these issues from consideration – the would be considered “non-severe” for purposes of Step II of the sequential evaluation process.
The judge then turned to the main issue in the case – what is the impact of my client’s MS on her capacity to perform any type of work. The judge conducted a very thorough examination. She did a nice job describing her fatigue and how she needed to lie down and sleep for 60 to 90 minutes each day.
After the judge asked his questions he turned the questioning over to me. I only had a couple of questions – I asked my client how she dealt with the fatigue issues when she was working – my client responded that she would go to her car and sleep during lunch and that sometimes she used personal leave time to extend her lunch break. I also asked her how about her sleep patterns and she testified that she had a hard time getting restful sleep because of restless leg syndrome and that she rarely felt completely rested.
After my brief direct examination the judge turned to the vocational witness and asked him to describe my client’s past work – it was all sedentary and skilled. The judge had no questions of the vocational witness and asked me if I did.
My thought was that the judge’s absence of questions was a good sign but I went ahead and asked two questions based on the neuropsychologist’s functional capacity evaluation:
1. If a hypothetical person was likely to miss 3 or more days of work per month due to symptoms from MS and associated medical treatment would that impact her capacity to perform competitive work?
A: that level of absenteeism would preclude competitive work
2. If a hypothatical person would not be able to complete a workday without interruptions from psychologically based symtoms and to perform at a consistent pace without an unreasonable number of interruptions, would that impact such a person’s capacity to perform competitive work?
A: this level of limitation would preclude competitive work
Conclusions: my sense is that the judge will approve this case because of the uncontroverted medical opinion evidence from a treating physician and because of my client’s overall credibility.