Multiple Sclerosis Case Study #2
Demyelinating Condition Equivalent to Multiple Sclerosis
Claimant: 21 year old male
Past work: city sanitation driver, fast food worker, factory work (warehouse)
Education: 10th grade
Hearing Info: The hearing in this case was scheduled before a reasonable, experienced judge. The biggest issue in my mind was the claimant’s age – he was only 23, which is very young for a disability claimant.
In reviewing the case prior to the hearing, I felt that there was only one issue – the treating doctor had completed a very helpful functional capacity form indicating that my client could not perform work, but the doctor was not entirely clear on the diagnosis. My client has a “demyelinating condition” which is like multiple sclerosis, but some of the lab reports were incosistent with a clear MS diagnosis.
In my mind, the exact diagnosis was not nearly as important as the resulting functional limitations and the likelihood of permanency. Here is an edited version of the pre-hearing brief I submitted in this case:
Office of Disability Adjudication and Review
245 Peachtree Center Ave.
Suite 500, Marquis I
Atlanta, GA 30303
RE: Claimant: D.A.
Date of Hearing: December 16, 2008
Dear Judge ______:
As your file will reflect, I represent D.A. with regard to his claim for SSDI benefits. A hearing is scheduled before you on Tuesday, December 16, 2008 at 9:45 AM. Please allow this letter to serve as my request for an on-the-record decision, or, in alternative a pre-hearing brief in this case.
My client is a 21 year old male with a 10th grade education. Despite his youth, Mr. Kilgore has a solid work history, including:
1. Street Department driver for the City of _____, Georgia (3/2007-5/3/2007)
2. Busboy/Waiter/Cook for ABC Restaurant (6/2001-2/2006)
3. Bagger/warehouse worker for XYZ Company. (8/06-10/06)
4. Driver for Domino’s Pizza (4/05-6/05)
5. Groundsman and driver for DEF Company. (9/05-1/06)
6. Cook for McDonalds Restaurant (2/05-8/05)
Mr. A. dropped out of school in the 10th grade to go to work to support his mother and family. He re-enrolled the next year and again began work in the 10th grade but had to drop out again to go to work.
The claimant can read and write, but, as you will note from the June 2, 2008 neuropsychological evaluation performed by Dr. R.G., Mr. A. has a fairly significant cognitive impairment, including a Full Scale IQ of 84 and severely impaired fine visual motor coordination and a highly variable attentional deployment that extended from the high average to severely impaired range.
Mr. A. is married and is the father of a toddler. He is wheelchair bound and can stand and walk for very brief periods of time – for example, he can get out of his wheelchair with support to get into a restroom.
Mr. A’s impairment arises from a demyelination process that appears to be a form of multiple sclerosis. Treating physician B.T., M.D., medical director of the Multiple Sclerosis Institute at the XYZ Hospital in Atlanta suggests in his office notes that the claimant has possible multiple sclerosis.
According to neuropsychologist R.G.’s notes, the claimant had an episode of meningitis at age 10. Following his recovery, the claimant experienced periodic headaches but was able to work extensively until May 3, 2007, when he woke up with a severe headache, numbness throughout his body and right sided numbness.
The claimant was referred to Dr. B.T. for treatment, and has been treating at the XYZ Hospital Multiple Sclerosis Center ever since. Symptoms that the claimant experiences include:
leg pain, especially on the right side
leg weakness that confines the claimant to a wheelchair
right side upper extremity pain and numbness extending into the hand
short term memory loss
vision and hearing loss
At my request, Dr. T. completed a functional capacity evaluation of the claimant, a copy of which is enclosed. As Dr. T. notes the claimant would likely experience excessive absences from work and would not be able to tolerate even low stress jobs. The claimant contends that this functional capacity evaluation represents an accurate representation of his current functioning.
Because the claimant cannot walk without assistance and uses a wheelchair most of the time, he would be excluded because of physical symptoms from any type of employment other than sedentary work. Because his multiple sclerosis has left the claimant weak (especially on the right side), fatigued, partially incontinent, and suffering from depression and cognitive decline, he would not be a reliable worker at any job within the sedentary job base.
I therefore ask your Honor to find claimant disabled. Thank you for your consideration of this request.
VERY TRULY YOURS,
GINSBERG LAW OFFICES, P.C.
by: JONATHAN C. GINSBERG
Hearing Strategy: I entered the hearing room with my client and his wife. My client is wheelchair bound and had a bit of a struggle getting through the narrow hearing room door. Normally, witnesses (his wife) would be asked to wait outside, but he judge looked at me and said that my client’s wife could stay as “we won’t be here that long.”
The Judge asked for an opening statement and I summarized what I had written in my pre-hearing brief. It turns out that the judge never received my brief even though I had submitted it three (3) separate times. This is not the judge’s fault – but it does point out the importance of always having extra copies of documents in case they have to be re-submitted.
After listening to my opening the judge turned to the claimant and asked him a few questions about his ability to stand and to use his right (dominant) arm. The judge then turned to our vocational witness and asked her for a summary and description of the claimant’s past work. He then asked the following hypothetical question:
Q: Assume we have an individual who is the same age as the claimant with the same education and work experience. Assume further that:
he requires a wheelchair to move around and he cannot walk or stand more than a few seconds
he has no ability to use his right arm and hand in any coordinated way and he cannot use it to grasp, grip, push or pull
Would this individual be able to return to past work?
Q: Are there any other jobs he could perform?
Q: Mr. Ginsberg, do you have any questions?
The judge then stated on the record that he would be finding in favor of the claimant. He then read what is called a “bench decision” into the record in which he stated his reasons for finding in favor of the claimant.
Summary: Even though my client was young, his medical condition was very serious and we had complete support from a credible treating doctor.