Back Pain Case Study #4
Back Pain + Mental Health Issues
Claimant: 50 year old male
Past work: production manager at printing company
Education: high school graduate
Hearing Info: my client had applied for benefits in June of 2004 alleging a disability that began in January, 2002. I had previously represented this claimant in a long term disability case, in which we were successful in obtaining benefits. The judge in our case was a new judge at one of the Atlanta area hearing offices.
Hearing Strategy: I was pleased to note that the medical record in this case reflected many years of on-going treatment and consistency in the diagnosis. The orthopedic and pain management physicians noted that my client’s cervical spine had deteriorated, which is entirely consistent with my client’s complaints of neck, upper back and radiating arm pain. Similarly, MRI evidence showed a deterioration of the discs in the lower back as well, which we could relate to the lower back pain my client was experiencing.
On the other hand, my client’s condition did not call for surgery. During the hearing, I had him testify that he had not undergone surgery because shortly after stopping work, a physician had told him that surgery would be extremely risky and could leave him paralyzed. The medical record was not entirely clear that this warning was anything different than a discussion of the risks that may be associated with any spinal surgery. One of the treating physicians noted that my client would “eventually need surgery.”
I raise this point because it raises the question of how a Social Security judge would interpret medical records like this. On one hand, Social Security judges are not permitted to consider as a negative factor a claimant’s unwillingness to submit to surgery. On the other hand, could the judge conclude that the treating doctors believe that non-surgical treatment (such as epidurals and nerve stimulation) are sufficient to control the pain?
My client’s medical record also reflected a diagnosed mental health problem. My client had previously advised me that mental health problems ran in his family – his father had committed suicide and a sister had attempted to take her life. My client had been prescribed several very powerful psychotropic medications to stop his mood swings, with the net result being that he had a very flat affect and showed very little energy or enthusiasm for anything. He testified that he experienced memory lapses, panic attacks, anxiety and occasional periods of deep depression.
My working theory of my case going into this hearing was that my client had a documented orthopedic/neurological problem that probably was sufficient on its own to keep him from performing competitive work, but that with the addition of an emotional instability component, he would clearly not be a reliable employee.
Hearing summary: the judge opened the hearing by introducing himself, the vocational witness and the hearing reporter. He did not ask for an opening statement. He also permitted the claimant’s wife to remain in the hearing room during her husband’s testimony. This is unusual because I had identified the wife as a witness to come testify about her husband’s mental health issues.
The judge then conducted a very thorough examination of the claimant. He asked about past work, the claimant’s education, his living arrangements and about his daily activities. He then asked the claimant about his medical conditions in detail. It was obvious to me that our judge had thoroughly reviewed the file.
After the judge asked his questions, I asked a number of follow up questions designed to identify specific activity limitations that might impair work activity. I pointed out that he used a cane and asked about his experience of pain.
Next, I called my client’s wife and asked her to talk about her husband’s mental state. She testified that he was frequently tired, had very little energy and motivation and had little interest in leaving the house.
Following testimony, the judge turned to the vocational witness and asked a series of hypotheticals. When judges ask hypotheticals, they identify a series of physical or mental health limitations that can interfere with work activities. Generally, by the time that the judge has formulated his hypothetical, he has most likely made up his mind about whether or not he will approve the case. Judges (like attorneys) know what vocational witnesses will say – they ask the hypothetical question so that they will have evidence that can be used to support their decisions.
Hypothetical questions to a vocational expert represent line drawing by the judge. “Mild to moderate pain” is not going to result in vocational witness testimony that will eliminate many jobs. “Moderate to severe pain” will eliminate jobs. For this reason, I get concerned if all of a judge’s questions include mild to moderate limitations.
Here, two of the judge’s hypothetical questions referenced “mild to moderate” limitations in both physical and mental areas of functioning. The last question essentially asked the vocational witness to assume that the claimant’s testimony was accepted as credible – this resulted in a response of “no jobs.”
My questions were not as sweeping as the judge’s third question – I honed in on a couple of areas where I felt the claimant had severe limitations – pain and concentration.
Summary: I think that this case boils down to a question of whether the judge believes that the medical record documents sufficiently severe levels of impairment to justify a favorable decision. My sense is that this judge does not give a great deal of weight to the claimant’s testimony. If the claimant comes across as not being truthful or credible, that will hurt the claimant. Believeable and credible testimony is expected. Assuming that the testimony is believeable, does the medical record on its own merits support a favorable decision?
I don’t have any feel about whether this judge expects something more than non-surgical treatment and documented evidence of a significant mental health problem. I would estimate that around 75% of the judges I see would approve this case – hopefully this judge will fall in that majority.