July 24, 2019

Amputated Leg – Listing 1.08(B)

Summary: 49 year old male with 9th grade education and unskilled past work claiming disability based on an amputated left leg.

Client profile: my client is a 49 year old male who left school in 9th grade. He is unable to read and write. His past work was as a laborer at a car wash. My client has been an alcoholic for many years, although he contends that he stopped drinking recently. Approximately 3 years ago, my client’s left foot became frostbitten and gangrene set in. In the spring of 2013 my client’s left leg was amputated below the knee. He subsequently developed an infection in the stump. He is not a good candidate for a prosthetic.

Claim background: my client filed for SSI benefits in late spring, 2013. As this is an SSI only case his onset date is his date of filing. This date is a few days after his left leg was amputated. A hearing was scheduled in a middle Georgia hearing office in June, 2016.

Factors in our favor:

  • my client’s lower left leg has been amputated and he is not a candidate for a prosthetic device
  • my client has a less than high school education and cannot read or write
  • my client has an unskilled work background
  • the judge in our case has a higher than average approval rate
  • it appears to me that my client meets the listing at 1.05(B)

Factors not in our favor:

  • my client is a long time alcoholic (although his left leg will obviously not regrow if he stops drinking, so it does not appear that his alcohol use is a material contributing factor to his disability
  • my client has a poor work history and shows little motivation to work

My strategy: it appeared to me that my client clearly meets a listing and that this file was somehow not caught at the administrative adjudication level. I wrote a pre-hearing brief that set out my argument. I was also prepared to argue that if my client did not meet listing 1.05(B), he would meet Listing 12.05( C), which calls for a low IQ and some other significant medical problem. I was also prepared to argue that my client’s medical and cognitive deficits, when considered in totality, would preclude competitive work.

Hearing Report: I submitted my pre-hearing brief to the judge and 3 days prior to the scheduled hearing the judge contacted me by email to say that he would be approving this case on the record.

Conclusions: this is an example of a listing level case that “slipped through the cracks.” My client had a previous lawyer who submitted a brief but failed to reference specific listings. This case shows why a pre-hearing brief and request for an on-the-record decision must be very specific and should not assume that anyone has read the record completely.