Summary: 39 year old female with treatment resistant narcolepsy and periodic episodes of cataplexy.
Client profile: my client is a 39 year old female with a high school education and 4 years of online college education from an unaccredited, now closed online college. Her past work was as a fast food worker, retail salesperson and data entry clerk.
Claim background: my client filed for disability in the spring of 2016. A hearing was held in an Atlanta area hearing office in early 2019.
Factors in our favor:
- We have treatment records from a neurologist and a sleep medicine specialist documenting on-going issues with narcolepsy, and non-responsiveness to multiple medicationso.
- We have a functional capacity evaluation form from a sleep medicine specialist that supports our claim and identifies significant work activity limitations.
Factors not in our favor:
- My client is a younger claimant
- There is a gap in treatment from mid-2016 through early 2018. During that time my client’s insurance coverage had lapsed and she did not have the funds to seek treatment from a specialist.
- The consultative psychological evaluation was not helpful and identified only mild limitations.
- The judge in our case is based in another state – this was a video hearing. I emailed a colleague in that state and his observations were that this judge is a “peculiar fellow” and “not well liked” in his home jurisdiction.
My strategy: I felt that the record documents my client’s long history of narcolepsy and episodes of cataplexy. The two specialists – a neurologist and a sleep medicine specialist – had been unable to control her symptoms and her current specialist issued a functional capacity evaluation noting that my client experiences up to 10 episodes of narcolepsy per day, lasting 10 to 45 minutes each. I believe that the record documents a legitimate and vocationally limiting condition that has not been responsive to medications.
Hearing Report: This was a video hearing in a very small room. The judge was appearing from out of state, and was present on a small (perhaps a 23″) monitor. My client and I were seated next to one another behind a small desk. At times during the hearing either the sound or video broke up. I mention this because the Social Security Administration has issued a proposed policy change whereby claimants cannot refuse video hearings.
My client’s condition is not one that is visible but this video setup would not be appropriate for a disability claimant with severe swelling, or mobility issues, or even skin discolorations. If SSA has its way, however, even those claimants will be forced into video hearings.
In any case, my client and I sat down and the judge began the hearing. Generally speaking I found this judge to be very friendly and personable. He was very engaged throughout the hearing and at several points, he referred to medical issues that his family members had and their efforts in overcoming those problems.
My client is a very outgoing person and she testified effectively in explaining how her symptoms impacted her now and in the past. She discussed how most of her family members and acquaintances did not understand much about narcolepsy and that many people in her life saw her as being lazy and not medically limited.
She explained that the various medications prescribed to her either did not work or resulted in severe side effects (mostly headaches) such that she could not take them.
Overall, I felt she did a very solid job of explaining the practical limitations of narcolepsy and how it limited her ability to function.
The judge’s questioning of my client went on for almost 50 minutes and, as noted, he was fully engaged. After finishing his questions he asked me if I had any questions – I had only two:
- how often do you fall asleep during the day and for how long – answer: 5 to 10 times, lasting 10 to 40 minutes
- how often do you experience episodes of cataplexy (mind aware but body asleep)? Answer: approximately 5 times per month, lasting around an hour but leaving her exhausted.
The judge then turned to the vocational witness and asked three questions:
1. Assume an individual who is the same age as the claimant with the same education and work background. Assume she is limited to light work, but cannot perform any jobs that involve working at unprotected heights or around hazardous equipment. Are there any jobs such a person could do?
A: Yes – and the VE identified three light, unskilled jobs.
2. Assume the same limitations as question one but add that because of episodes of daytime sleepiness, this hypothetical person would be off task 15% of the day in addition to regularly scheduled lunch and coffee breaks. How would this impact the job base
A: There would be no jobs in the economy that would allow for this level of impairment.
3. Assume the same limitations as question one but add that because of migraine headaches, medication side effects and other problems associated with her condition, this hypothetical person would miss at least one day per month. How would that change your answer to question one?
A: There would be no jobs in the economy that would tolerate this level of absenteeism.
The judge then expressed his best wishes to my client and noted that he would study the evidence carefully. He also noted that “there was not a lot of medical evidence in the file, which concerns me” but “I will give your case a close look.” He then closed the hearing.
Conclusions: I do not agree with the judge that there is lack of medical evidence in this file. My client treated with two specialists, both of whom reached the same conclusion – that her narcolepsy was debilitating and that she had unacceptable side effects from the medications normally used to control this condition.
Further, the judge’s first hypothetical question contained no reference at all to any degree of impairment, while his second and third hypothetical questions described significant, disabling levels of impairment.
If the judge denies this case, it will be interesting to see what type of reasoning he uses since a judge cannot substitute his opinion for vocational witness testimony.
This case should be approved but we’ll have to see what the judge does with it.