This case involved the claim of a 38 year old man with severe degenerative arthritis in both knees. He is a candidate for bilateral knee replacements and contends that he cannot work because of pain, swelling and the need to frequently stretch and take excessive breaks.
Client profile: 38 year old male
Education: high school + military service
Past work: truck driver, food prep worker, mailroom clerk, machine operator
Claim background: my client filed for benefit in May, 2010 alleging that he became disabled in January, 2008. A hearing was held in an Atlanta area hearing office in July, 2012.
Medical background: my client’s only source of treatment was at the VA hospital. The VA records documented significant degenerative arthritis in the knee which was treated with pain medications. My client has a 50% service connected disability arising from his knee injuries. Social Security sent my client to a consultative evaluation with an orthopedist who also documented severe degenerative arthritis in the knee, and who noted that my client was about ready for a left knee replacement and would need a right knee replacement soon. The Social Security doctor limited my client to sedentary work.
Factors in our favor:
- I have had some success with knee pain cases as pain in the knees can affect a person whether sitting or standing.
- My client’s knee problems have progressed to the point where he needs bilateral knee replacements.
Factors not in our favor:
- the medical record in this case was sparse, consisting only of VA records
- we did not have a functional capacity form from anyone
- the judge in our case is less likely than average to approve cases
My strategy: I felt that the issues in this case were very straightforward. My client clearly has an objectively diagnosed problem in that both knees have deteriorated to the point where he needs both knees replaced. The Social Security consultative doctor limited my client to sedentary work. The only real question – would the judge accept my client’s testimony that his pain was so severe that he could not concentrate or focus, that he needed to take frequent breaks during the day to move around to relieve the stiffness, that he was likely to miss excessive time from work due to swelling and pain, and that the side effects of his pain medication would reduce the pace of his work?
Hearing Report: my client and I entered the hearing room and were greeted by the judge, who thereafter introduced the vocational witness and the hearing reporter. After accepting the record into evidence and discussing a few preliminary matters the judge asked me for a brief opening statement. The case strategy I outlined above reflects what I stated in my opening.
The judge then asked me to take testimony from my client. I started by asking him about his past jobs, and why he left those jobs. My client testified that he was unable to continue working because of problems with knee pain. Specifically he stated that his last job, which was as a food prep cook, lasted only 2 months because his knees would swell after standing all day and that he missed too much work. He testified that he had another unsuccessful work attempt for a shipping company because of his inability stand.
After discussing his past work, I asked him to describe his knee pain, and how it affected his day to day activities. He testified that the pain felt like a drill boring into his knee and that the pain level could reach 8 on a 10 point scale. He testified that he could sit or stand for about 45 minutes then he would have to change positions and stretch for up to 15 minutes.
I asked him how these knee problems were affecting his life and he testified that he and his wife had been homeless at times and that they were constantly moving.
After I finished my questioning the judge asked several questions about my client’s problems at his past work and about his condition.
After the judge finished his questioning, he turned to the vocational witness, who testified that my client’s past work included:
- truck driver – medium, semi-skilled
- machine operator – medium, semi-skilled
- glass worker – medium, semi-skilled
- order picker – medium, unskilled
The judge then asked the following two hypothetical questions, both assuming a hypothetical individual who is the same age as the claimant, with the same work background and education:
I. Assume a hypothetical person limited to light work (can sit for 6 out of 8 hours per day, or can stand for 6 out of 8 hours per day)
this person needs a job with a sit/stand option whereby he can change position at 1 hour intervals
Based on this limitation, could such a person perform work in the regional or national economy?
A: Yes, such a person could work a variety of light, unskilled jobs, including:
- fundraiser
- cashier at self-serve gas station
- parking lot attendant
- mail room clerk
II. Assume that the claimant is credible in his assertions, would a hypothetical person with the same limitations be able to perform any type of work?
A. Such a person could perform a variety of jobs with a sit/stand option, including that of a mail room clerk and others.
The judge then asked me if I had any questions, which I did:
III. Assume a person who needs a 15 minute break every hour in which he has to walk around to stretch out his legs. Would this level of absence from the job site be acceptable?
A. No, such a person could not perform competitive work.
IV. Assume a person would miss 3 to 4 days of work per month because of pain and swelling. Would this level of absences pose a problem?
A. Such a person could not sustain competitive employment.
Conclusions: the decision in this case will turn on whether the judge accepts my client’s testimony that his pain level is such that he would miss excessive time from work and/or that his pain level would significantly interfere with his attention and concentration.