Grid Rules Case Study #4
Claimant: 51 year old female
Past Work: grill cook at short order restaurant
Education: 10th grade
Case background: My client is a 51 year old female with a 10th grade education and medical problems including Type II Diabetes, hypertension, high cholesterol, anemia, ankle pain, foot pain, damaged toenails. She is also a cigarette smoker – at one point a 2 pack a day smoker.
From 1998 through December, 2006, she worked as a grill cook at a short order style restaurant. She stopped working because her feet had become very painful and she was no longer able to stay on her feet.
She has very meager financial resources and sees her doctor and podiatrist once every year or so. Her last treatment was in January, 2008, almost 2 years prior to the hearing. Her medical record indicates that she has had a difficult time with regular doctor visits and with keeping her prescriptions filled because of financial issues.
I met with her prior to the hearing and she came across and a good natured, simple person who did not have much knowledge about eating properly or obtaining medical care. She reported that she could walk 100 to 200 feet before her feet became too painful for her to continue. She also stated that she has tried to cut down on her smoking and that she is down to 1/2 pack a day.
My Case strategy: I saw this as a “grid” case plain and simple. Grid rule 201.10 results in a finding of “disabled” for an individual age 50-54, with a “limited or less” education, semi-skilled work that yields no transferable skills, who is limited to “sedentary” work.
In this case, my client was almost 50 at onset, and based on her testimony and the limited medical record, I didn’t see how any reasonable finder of fact could conclude that she could stand and walk for 6 out of 8 hours in a day (a requirement of “light” work).
Prior to the hearing I explained as best I could how the grid rules worked and secured permission from my client to amend her onset date to her 50th birthday.
Hearing report: The judge opened the hearing by introducing himself and the vocational witness. The judge was appearing by video, so he was not live in the hearing room. I have appeared several times before this judge and he tends to be one of the “less reasonable” judges I see. Although I felt that we had a good case, I was not especially confident about a positive outcome.
The judge asked me for an opening statement. I set out my “grid rule” argument and announced that we were prepared to amend our onset date to the claimant’s 50th birthday.
The judge then turned to the claimant and asked her about her capacity to walk. My client repeated to the judge what she had told me – that she could barely make it from the car (her son drove her) to the hearing room and that she had to stop several times.
The judge asked her why she had not been consistent with medical care – she responded that she did not have the money for ongoing care to to fill her prescriptions. The judge then grilled her about why she continued to smoke. He asked her how much she smoked and how much a pack of cigarettes cost. He also asked how much she paid for a doctor’s visit. He noted that if she was to stop smoking she could see her doctor 4 times a year.
My client did not really know how to answer that, especially as the judge took a somewhat hostile tone in his questioning.
When I had a chance to ask questions I asked her if she had tried to quit smoking – she had, but did not have the money for a “stop smoking” program.
The judge then turned to the vocational witness and asked him to describe the claimant’s past work – his response: the claimant was a short order cook, D.O.T. #313.374-014, which is light and semi-skilled.
Were there any transferable skills to sedentary work? “No.”
The judge asked me if I had any questions and I responded “no.”
Summary and lessons learned: I believe that the judge will approve this case based on grid rule 201.10. Most judges do not take such an aggressive approach about a claimant’s smoking, but this judge’s approach is worth noting. If you do smoke, you may be asked to justify both the cost and your decision to ignore the health issues associated with smoking.
I do not disagree with the judge about the problems with smoking although I think that he discounts both the difficulty smokers have with quitting and the cost of smoking cessation programs. I am glad that my client referenced the cost of a smoking cessation program although it would have been better if she had actually tried to attend one of these programs.
I am expecting a favorable decision in this case.