Case Study 5

Claimant: Female, 54 years old.

Occupation: clerical, receptionist, inventory control clerk, tire builder (machine operator).

Education: High School Diploma + 1 semester college

Hearing Info: Claimant applied for benefits in July 2004, alleging disability as of May 2002. Hearing was held in June, 2008.

Case strategy: First of all, I’d like to point out that fibromyalgia has gone from being a relatively unknown condition to a diagnosis that gets used indiscriminately. A legitimate fibromyalgia patient often has the following characteristics:

claimant is a female, usually in her late 30’s to mid-50’s
she is a highly organized, type A personality
she has over achieved at work – perhaps a clerical worker who, because of hard work and organizational skills, moved quickly up the corporate ladder to a position of trust and authority
she does not have much formal education, or her education is less than what one might expect for an employee in her position
she keeps accurate records of medical treatment, frequently compiling a notebook that is tabbed and divided
she has gone to multiple specialists – rheumatologists, gastroenterologists, internists, neurologists, etc. – in an effort to secure some type of cure
her symptoms often include gastric upset, esophageal pain, balance issues, short term memory issues
she experiences myofascial pain – with extreme sensitivity to the touch – even the pressure of a bed sheet can be too much

My client in this case had most of these issues – even though her case had some problems. First, my client had undergone multiple tests with a variety of doctors. She underwent nerve conduction tests, MRI’s, CT scans, and a variety of other tests. All these tests came back negative. In addition, several of her treating doctors had referenced the term somatization, which refers to a mental health condition in which the patient perceives symptoms of one or more nonexistent medical conditions.

A second problem is that we did not obtain a functional capacity form from my client’s doctors. When these forms are not available, it is easier for a judge to disregard testimony. A helpful form that is filled out by a treating physician will give the judge no choice but to approve the case.

The third issue was that my client is an avid computer user who maintains a web site about fibromyalgia where she has regular correspondence with other fibromyalgia sufferers. She asked several of her friends to write supportive letters to the judge. Maintaining a web site, actively counseling others, and appearing highly organized looks like work activity. The judge could conclude that since my client had the capacity to maintain a web site and regularly correspond with others, she did have the capacity to perform some regular work activities.

The Hearing: Before the hearing, I met and explained to my client that the most important issue in our case was her capacity to perform work or work-like activities. We needed to show that her functional capacity for work was so poor due to her medical conditions that she would not be a reliable employee in any regular job. In other words, we did not want it to appear to the Judge that she was able to perform work, so we were probably better off not mentioning all of her online and corresponding type activities.

I recommended that we focus on four (4) main problem areas which have vocational impact:

gastric and digestive issues, including chronic diarrhea and constipation, which required frequent, unscheduled bathroom breaks
chronic fatigue – which impacted reliability
chronic neck, shoulder and myofacial pain
impaired concentration and memory

Other areas of complaint were not as important as these four.

The judge began by asking some very thoughtful questions. My client answered by referencing the four main problem areas we had discussed.

My questions touched on each of the four areas. I specifically asked detailed questions about diarrhea, constipation and bathroom usage because I have won a number of cases referencing these issues (mainly because frequent, unscheduled breaks due to digestive issues can really impact one’s productivity).

The judge then directed questions to the vocational expert (VE). All the judge’s questions referenced mild impairments with all the answers from the VE indicating that the claimant could return to past work. Here is one of the judge’s questions:

“Assume we have a hypothetical person who is the same age as the claimant with the same education and work background. Assume further that this hypothetical person is limited to light work with the following conditions and limitations:

limited to occasional climbing, but no activity involving ladders, ropes or scaffold.
limited to occasional stooping
reaching, including overhead reaching would be limited to occasional
psychologically, our hypothetical person would have no limitations in understanding simple instructions, but would have mild limitations in understanding detailed instructions because of a mild limitation with attention and concentration
our hypothetical person would be limited to simple work or no more than a moderate level of detailed work that does not require prolonged periods of intense concentration
exposure to temperature extremes would be limited to occasional
there could be no work involving heavy or vibrating equipment, but she could stand vibration equivalent to what she might experience when riding in an automobile
she would need to avoid a noisy environment

The VE’s response to this hypothetical was that jobs did exist within the limitations of the hypothetical question. I asked a series of questions concerning the multiple bathroom breaks and other impairments in order to get the direction of the VE’s testimony to change a little. These questions yielded “no work” answers.

Conclusion: Despite our efforts, the judge denied our case. He felt that my client’s writing and advocacy were characteristics of a person who had the capacity to perform a simple job. He also did not believe that her impairments were as serious as she claimed, and that she could perform some types of work regardless.