Last week, I tried a back pain case in a video hearing in Rome, Georgia. The judge was in a different State, while the claimant, the vocational expert and I were in Court together.
Normally, I am not a big fan of video hearings because I think that the claimant loses the one to one connection with the judge that occurs in an in-person hearing. This judge, from the Chattanooga hearing office, was very prepared and, in my view, took a very reasonable approach to the hearing.
My client was a 56 year old female with chronic neck and back problems. There was not a lot of medical evidence in the file as my client could not afford on-going treatment and she could not afford surgery. She had treated for many years with a chiropractor, but, under Social Security rules, a chiropractor’s records are not given much weight.
Basically the record we had included a number of office records from a family physician and a consultative evaluation by an orthopedist. The records suggested that my client had very bad degeneration in the cervical spine and most likely needed surgery.
My client testified that she was in almost constant pain and that most of her time was spent trying to be comfortable.
In 2003, my client stopped working her last "regular" job but she shortly thereafter accepted a part time position in a retail store. My client worked there part time until September, 2005 when she had to stop because of the pain. She testified that she worked between 8 and 30 hours a week and that she worked "as many hours as they would give me." Interestingly, her earnings in most of those months were below "SGA" (substantial gainful activity).
Earnings above SGA are presumed to signify that a claimant is engaged in work for Social Security purposes.
The judge felt that even though her earnings were below SGA, the only reason she was not earning more was a lack of available hours. Had more hours been available to her, she would have and could have performed those tasks. The judge therefore asked us to amend our onset date the last day she worked at the retail store. I asked the judge for a short recess and after speaking with my client, we agreed to amend the onset date.
I think that this case is relevant for a couple of reasons. First, we had a judge who was able to look beyond the absence of a functional capacity form or even a clear statement of limitations from a treating orthopedist. He was willing to listen to the claimant’s testimony and deduced from the record that the claimant’s neck pain was severe and debilitating.
Second, we have another example of how part time work muddies the water. If you work part time, judges will often assume that a lack of hours rather than a lack of capacity to work kept your earnings down.
Some judges would have denied this case because of the absence of clear objective evidence. Fortunately, this judge was willing and able to use his insight and common sense. This is as it should be. The word "judge" is both a noun and a verb. Judges who turn a case down because there is no MRI report or orthopedist opinion are not doing their job. Often the reason there are no objective records has to do with the claimant’s lack of money or health insurance. A poor claimant is no less disabled than a claimant with good insurance. I personally think that a judge needs to learn how to read between the lines, listen to the claimant and consider the entire picture.
We had such a judge in this case and I think he engaged in a proper analysis of this case. What do you think?
[tags] SGA, substantial gainful, Chattanooga OHA, social security disability claimant [/tags]