Fibromyalgia Case Study #6
Claimant: 50 year old female.
Occupation: My client previously worked as a nurse for 15+ years, ending in February, 2003 because she could not physically perform nursing functions. In April, 2003, she took a job performing patient record review for an insurance company, which ended in November, 2003. In 2005 and 2006, she attempted to work part time at a booth type retail store but was unable to attend work for more than 10 hours per week.
Education: college degree and nursing school diploma
Hearing info: Claimant applied for benefits in June, 2006, alleging an onset date of November 1, 2003. The hearing was held as a video hearing in December, 2008 before a judge from the national hearing center in Falls Church, VA.
Background: As is the case with many of my fibromyalgia cases, this client fit the profile of the high achieving, middle aged female with an extensive medical record and a type A personality.
In this case, my client was a nurse for many years, performing nursing duties ranging from ER work, hospital work, doctor’s office work and non-patient care clerical nursing work. In late 2002, she began experiencing fatigue, shortness of breath and digestive problems – alternating constipation and diarrhea.
She sought treatment from a gastroenterologist, who could not find any specific cause for her problems. She sought treatment from a cardiologist about her fatigue and shortness of breath. The cardiologist diagnosed a mild, congenital heart issue and hypertension, but also suggested that the claimant might have fibromyalgia.
By 2005, the claimant had been out of work for almost 2 years and she was seeing an orthopedist for neck and back pain, and her internist for hypertension, fatigue and migraine headaches. In October, 2006, the claimant underwent cervical spine fusion surgery in her neck to relieve numbness, tingling and pain in her arms and hands. As the claimant described her condition to me, she stated that “once I am able to get one condition under control, it seems as if another one of these problems gets really bad.”
In 2006, Social Security sent the claimant to a psychologist for a consultative exam, and the psychologist identified issues with concentration such that the claimant would not be able to adhere to a typical workday schedule or maintain adequate pace at even a simple job.
I was also able to get the claimant’s internist to complete a functional capacity form, which identified a number of reliability limitations.
Analysis: The judge in our case was appearing by video from the national hearing center in Falls Church, Virginia. I have had several hearings with this judge and I find that he is deliberate and well prepared. I have never had any problems with his decisions or his judgment. However, a colleague of mine, who I consider to be a good lawyer, has had some problems with this judge, including an unfavorable decision in a case that my colleague felt was clear cut. So far, I have not had bad experiences with this judge but I am aware of my friend’s concerns.
Another potential issue – Social Security has been phasing out paper files and is moving to an all electronic filing system. They have recently rolled out a system in which attorneys can log on to a web site and submit exhibits electronically, but at the time we were working up this case, the only way to submit records was via a fax submission service. The problem with the fax system is that SSA does not have enough fax machines. During the week prior to this hearing, my paralegal had been trying to fax over 100 pages of updated records, but the fax number was consistently busy. We finally got them through in the middle of the night a day or two prior to the hearing. However, when I arrived at the hearing room the judge said that these new records had not yet made it to the file.
I do not like for judges to have to leave the record open after a hearing because judges forget specific claimants and I have seen instances when a judge has denied a case that I believe he would have otherwise approved but for the record being left open. I don’t think that will happen here but the record will be left open for at least a few days.
I felt that this was a strong case. The claimant had extensive and on-going treatment, and she had unconditional support from her treating doctors. She also had objectively observable medical issues, including neck problems that required surgery, a mild but definitive heart problem and partially controlled hypertension. Although none of these medical problems was likely to be enough to support her claim for disability, when taken in combination and taken along with her fibromyalgia diagnosis, I felt that there was compelling evidence.
Description of Hearing: The judge opened the hearing by greeting the claimant, me and the vocational witness. He then spoke to me about the evidence in the file. At that point we discovered that the 100 pages I had recently submitted had not yet made it to his file. As the judge noted, we had consistent and compelling evidence through the end of 2006, but only partial records thereafter.
The judge also asked the claimant about approximately $3,500 that appeared on her earnings record in 2004, the year after she stopped working. This type of question is common – if there are earnings after the alleged onset date, the judge will want to find out why. In this case, the $3,500 represented accrued vacation time from one of the nursing jobs.
The judge then swore the witnesses and asked the claimant to describe her condition. My client was a good witness and she spoke about each of the areas of her body that were causing problems. I asked a few follow up questions but I felt that the claimant had described what she has been going through in response to the judge’s questions.
The judge then turned to the vocational witness and asked him to identify past work. He then posed a fairly restrictive hypothetical question that included all of the claimant’s impairments at a fairly restrictive level. The vocational witness responded by testifying that there were no jobs that the claimant could perform.
The judge then turned to the claimant and noted that her medical history was consistent and long-standing and that she had a solid work history and that “your attorney will explain what I am going to do here.” He also said that he would need to review the records not yet in his file and that he did not expect these records to change anything.
Summary: In thinking about this hearing, I think that the factors that were the biggest help to my client included:
solid work history
regular visits to the doctor
complete support with RFC forms from two treating doctors
competent judge who was very familiar with the file and who had no philosophical objection to a fibromyalgia diagnosis