July 19, 2019

Crohns Disease Case Study #3

This case involved a 22 year old male who had been diagnosed with Crohn’s Disease as a young child.  Although he graduated high school, he has not worked in an outside workplace.  This case study was submitted by attorney Jonathan Ginsberg of Ginsberg Law Offices, P.C. in Atlanta, Georgia.

Claimant profile: 22 year old male

Past work: none

Education: high school graduate

Claim background: my client applied for SSI benefits in September, 2008, alleging an onset date in June, 1998.  Because SSI claims are only payable as of the date of application, we subsequently amended the onset date to September 18, 2008, the date of the SSI application.

Medical and Vocational background: my client claimed disability based on Crohn’s Disease, a condition that results in chronic inflammation of the tissues in his lower intestine and rectum.  He was originally diagnosed when he was 10 years old and that since that time, he experiences flare-ups and regular pain and discomfort.

Specifically, my client claims that on his best days, he must use the restroom three to five times daily and that the duration of his restroom visits is 30 to 45 minutes.  He further claims that because he has developed anal fissures (constant open sores in the rectal area), he has difficulty cleaning himself, such that he showers after each bowel movement to properly clean himself and avoid bacterial infection.

The record reflects that at least 2 to 3 times per year, my client develops an infection or experiences a flareup of the Crohn’s, which requires hospitalization.  These hospitalizations last from 5 days to 3 weeks depending on the severity of the flare-up.

My client also complains of depression associated with his chronic condition and the record reflects two unsuccessful suicide attempts by prescription drug overdose.

My Strategy: in reviewing this file, I felt that this was a strong case despite my client’s youth and lack of work experience.  I felt that it was possible that his condition met listing 5.06 because of the frequency of flareups and the frequency of hospitalizations.

In the alternative, I felt that we could show that my client could not sustain competitive employment because of the likelihood that he would miss excessive amount of work, and because of his credible claim that he would need to take up to 3 hours of restroom break time during the day, an amount of time that any vocational witness would agree is excessive for competitive work.

This case was scheduled to be heard by a judge at the National Hearing Center, meaning that the judge would appear by video conference.  I have been before this judge before and I find him to be fair but likely to ask tough questions of the claimant.  As such, I prepared a pre-hearing brief setting out my argument clearly.

Hearing Report: this hearing was held in the Marietta, Georgia video hearing office.  The judge opened the hearing by swearing in the claimant.  There was no vocational witness present, even though the hearing notice said that one would be there and a VE’s resume was in the file.

The judge’s first question to the claimant was “what did you eat yesterday?”  Next the judge asked my client if he had been given a specific diet to follow and did he follow a specific regimen in terms of his daily activities.

My client was somewhat nervous but he came across as believable when discussing what he ate and his adherence to his doctor’s recommendations.  My client did point out that money was a problem and that sometimes he did not have enough money to fill his prescriptions.  He testified that currently he did not have a regular doctor and that he got his medication (Humira, an anti-inflammatory) from a long term prescription filled out by an emergency room doctor.

The judge then turned the questioning over to me.  As I had already filed a brief I decided to highlight the “reliability” issues.  I asked my client to describe in detail why he needed 30 to 45 minutes in the restroom when he had a bowel movement.  Previously, he had testified that he needed 30 to 45 minutes to “take care of things the way I needed to.”  I had him testify about the difficulty he had cleaning himself as well as his need to take a shower after his movement.

I asked him about his depression and suicide attempts.  He testified that he was depressed because of the realization that he would be dealing with his Crohn’s for the rest of his life.

I then asked about his daily activities – he testified that he was able to work in his computer (composing electronic music) for about an hour at a time, totaling around 3 hours during the day, and that he probably spent 2 ½ to 3 hours per day in the bathroom. I wanted to make sure that we had specific time periods on record.

I finished up by asking him about his medications and why, as mentioned in the record, there were times when he did not take his medications.  He testified that he frequently did not have the funds to buy his prescriptions nor did he have the funds to see a gastroenterologist regularly.

The judge asked a few followup questions then he closed the hearing.  After the recording equipment was turned off (“are we off the record, now”) he turned to my client and said “let me suggest to you that you explore the role of diet in dealing with the symptoms of Crohn’s Disease.  This is a very serious condition and you may find that you feel better if you avoid gluten and dairy products.  Your medicines will mask the symptoms but not cure the condition.”

Conclusions: I believe that the judge will approve this case.  As noted, there was no vocational witness, meaning that the judge cannot make vocational conclusions.  Generally if a judge intends to deny a claim because he feels that the degree of impairment is not disabling, he will need a vocational witness to identify jobs based on a hypothetical question.  By contrast, if the judge does not call a vocational witness, he will only deny if he finds the claimant totally not credible or if the evidence is not supportive at all.  Here, we had uncontroverted evidence of a serious medical condition, including evidence of frequent hospitalizations and invasive, painful treatment. In addition the underlying condition is inherently painful with symptoms that clearly would impact someone in a work environment.

Based on the nature of the evidence and the course of this hearing, I expect a favorable decision.