Background

The claimant was a 54-year-old male who allegedly experienced 5 to 10 migraines per month.  In addition to his migraines, he was blind in the right eye (due to a construction accident) and also suffered from depression and audio hallucinations.

The claimant had a 10^th grade education, and his work experience included construction (carpentry) and HVAC installation.  He applied for benefits in May 2007 alleging disability as of May 2006.  After his claim was denied at the early stages, a hearing was scheduled for April 2009.

SSI Only Case

It turned out that this was an SSI only case.  Although my client had worked consistently until May 2006 (his onset date), he was paid cash wages by many of his employers, meaning that he did not have enough insurance credits for Title II SSDI (aka disability benefits).  Instead, he was only eligible for SSI (Supplemental Security Income) benefits.  SSI monthly payment amounts for 2009 and prior years are less than $700; by contrast SSDI benefits often total $1,000 per month or more.

My client alleged an onset date of May 15, 2006, and he applied for benefits On May 4, 2007.  In an SSI case, a claimant can only collect as of the date he applies for benefits – by contrast an SSDI claimant can collect past due benefits up to 12 months prior to the date of application.  So in this case, the claimant, if successful in getting benefits awarded, would only get benefits dating back to his application date of May 2007.

Medical Background

My client has a number of medical problems including loss of vision in his right eye, migraine headaches, depression, audio hallucinations, tremors and low back pain.  In 1997, my client lost the vision in his right eye when he was struck by a nail from a nail gun while doing construction work.  He asserts that his mental health symptoms (depression, audio hallucinations) arise from the trauma of losing his eye.

Hearing Strategy

In reviewing this file, I felt that the migraine headache issue and the audio hallucination problem gave rise to my strongest argument for disability.  My client advised me that he experienced migraine headaches 8 to 12 times per month and that each episode could last 6 hours to 2 full days.

Given that there was a clear physical cause for the migraines, I felt that the judge would not have any issues with my client’s credibility.

Similarly, I felt that his complaints of depression and audio hallucinations would be found credible.  Although I did not have a definitive psychiatric relationship between the nail gun accident and the depression and hallucinations, I felt that the judge would most likely give my client the benefit of the doubt on this issue. This accident was clearly a life-changing event for my client and he asserts that he relives that day again and again.

By contrast, the back pain records were from a chiropractic clinic and did not include any statements regarding loss of functional capacity. I therefore decided to put little weight on the back pain issues.

The Hearing

The Judge called the hearing to order and quickly dispensed with preliminary matters – confirming that I have no objection to the evidence and introducing the vocational witness.

The judge then asked for an opening statement and I responded by saying that the work limitations associated with this case arose primarily from frequent and chronic migraine headaches and from a breakdown in my client’s mental health that included severe depression and audio hallucinations.  I noted that my client had a limited education with minimal reading and writing skills and that his past work was primarily as a heavy laborer.  I explained that since the nail gun accident my client had minimal patience with co-workers and supervisors and that he had lost his last job after yelling at his supervisor.  I concluded my opening statement by citing records from my client’s mental health treatment that documented the audio hallucinations and the anger management issues.

The judge then asked my client a few background questions, then turned the remaining questioning over to me.

I began by asking my client about his eye injury – how it happened, his course of treatment, and his resulting loss of vision in that eye.  I then asked him about the effect of the vision loss in terms of his mental health.  My client testified that after the eye injury he became severely depressed and that he lost his capacity to perform most construction jobs.

We spoke about the voices in his head and he testified that these voices often occurred while he was having a migraine.  He stated that the voices encouraged self-harm and told him that he was “no good.”  My client stated that before the nail gun accident he had never heard voices, nor was he depressed.

I elicited from my client testimony that he experienced migraine headaches approximately every three to four days and that each episode could last between 6 hours and two to three days.

After hearing the claimant’s testimony the judge asked a few follow-up questions about the frequency of the migraines, then he turned to the vocational witness and asked a hypothetical question that tracked my client’s testimony:

Q: Assume we have an individual who is the same age as the claimant, with the same educational and work background.  Assume that he is limited to a light residual functional capacity but has the following exertional and non-exertional limitations:

• cannot work at unprotected heights or around dangerous machinery
• is frequently distracted by a variety of mental health conditions including audio hallucinations and depression such that he has a severely impaired capacity to maintain attention and concentration
• because of the audio hallucinations he should avoid jobs that require any interaction with the general public and co-workers
• because of migraine headaches that can occur as frequently as three times a week and lasting a minimum of 6 hours, he is likely to need to take more than 3 unscheduled breaks from work lasting more than 2 hours

Based on these limitations, can this individual return to past work?

A: No

Q: Could he perform any other work?

A: No.

Q: What are the reasons for your answer?

A: his reliability and capacity to perform any job in a workmanlike fashion would be so compromised that there are no jobs in a competitive work environment for such a person.

Analysis

The claimant prevailed in this case because we were able to show that my client had such extensive reliability issues that he would not be able to obtain or fulfill the obligations of even a simple, unskilled, entry-level job.  The judge accepted our argument that the nail gun accident had scarred the claimant both physically and mentally and that he was no longer capable of any work.