32 Year Old HIV Claimant With Chronic Diarrhea

Claimant: 32 year old male

Past work: Construction worker, warehouse worker

Education: 12th grade + 1 year college – no problems reading/writing

Hearing info: the claimant applied for benefits in August, 2006, alleging that his disability began in January, 2005.  The claimant had sought help from the office of Senator Saxby Chambliss and the file contained several letters from the Senator’s office asking about the status of the case.  I mention this for two reasons: first, if the hearing office does react to a letter from an elected representative to expedite the hearing date, the exhibit file for that case will not be numbered and organized so it can be a little more difficult to review the record, especially if the medical record is large.  Second, I think that there is a slight risk that a judge might resent a claimant who has pulled strings to move to the front of the line.  In this case, in particular, there were several notes in the medical records containing references to the claimant’s desire to win disability.

I always advise my clients to bring to disability hearings an attitude showing a desire to work.  The last thing a judge wants to see is yet another claimant who has “invested” in his disability and who has decided that he is disabled and unable to work.

In this case, I thought that the medical record was good but I did have some concerns that my client my exhibit an “attitude of entitlement” at this hearing.

Hearing strategy:

The hearing in this case was held in Savannah, Georgia at a new hearing office.  As of the date of this hearing (October, 2008), the Savannah hearing office has no signs on the outside, nor is the interior door marked.  I suppose that this problem will be corrected, but just in case, you should be aware of this issue if you have a hearing scheduled for the Savannah ODAR.

As noted, my client is a 32 year old male who was diagnosed with HIV in 2005.  Although he has been compliant with medications, his T-cell count has been somewhat low and he is very susceptible to infections.

His main complaint relates to weight loss and chronic diarrhea.  He has lost over 30 lbs. during the past two years and he does appear very thin (although not emaciated).

Course of Hearing. I had not previously appeared before the judge at this hearing, nor did I know the vocational witness.  The judge opened the hearing by introducing himself and the VE, then he asked me if I had explained the issues of the case to my client (I had) and if I had any objections to any of the exhibits in the record (which I did not).

The judge then asked me for an opening statement. I explained that the medical basis for this claim was an HIV infection and that my client was experiencing both depression from having a life threatening condition and that he was experiencing chronic diarrhea and significant weight loss.  I made specific note that he needed to use the restroom at least once an hour and that he need to go to the restroom was unpredictable.  I argued that his condition approached the listing for HIV, but that if the court was not willing to find that he met the listing, we were arguing that his functional capacity for work has been so reduced by his weakness, fatigue and constant need to be near a bathroom that he would not be able to perform any type of competitive work.

The judge proceeded to take some background information from the claimant and to ask a few questions about why the claimant felt that he was disabled.  After about 10 minutes of questioning, the judge turned it over to me.

I started by asking questions about the claimant’s past work.  At that point the judge interrupted me to say that we did not need to go over the work history as it was set out clearly in the file.  Over the years, I have known judges to do this – interrupt a lawyer to say that we need to move to the meat of the issue at hand.  I have no problem with this because I prepare my hearings to move from topic to topic, however, I recall that when I first started practicing law 20+ years ago, this type of interruption might cause me to lose my train of thought.  Now, I just drop the line of questioning that the judge does not want to hear and move on.

I then proceeded to ask my client questions about the symptoms he had been experiencing.  He discussed the general fatigue and malaise as well as the chronic diarrhea.  I had him testify specifically about the number of times he needed to use the restroom and about how unpredictable his needs were in this regard.

I then asked him questions about what he felt his limits were regarding sitting, standing and walking and about his unpredictable fatigue.

Following my direct exam, the judge turned to the vocational witness and asked his first hypothetical:

1) assume an individual who is the same age as the claimant, with the same education and work background who is limited to light work with the following limitations:

-moderate level of pain

-moderate problems with attention and concentration

-moderate problems with maintaining sufficient pace on a job

-no work that requires regular interaction with the general public

-moderate level of depression

The Vocational Witness responded that these limitations would not preclude prior work.

The judge then asked a second hypothetical:

2) assume the same limitations as hypothetical #1, but add the following:

-needs to take unscheduled bathroom breaks at least once an hour during a workday

The Vocational Witness responded that this added limitation would preclude all previous work and any other work.

The judge then asked if I had any questions, and my response was “no.”

My feeling here is that if the judge accepted my client’s testimony – and there was no contradictory evidence – the second hypothetical represents my client’s functional capacity for work.  There is no reason for the judge not to accept this testimony so this case will be approved.