Cervial Fusion 20 Years Ago, Now Neck, Mid-Back and Low Back Pain and Carpel Tunnel Syndrome
Claimant: 41year old female
Past work: fast food worker, factory work (assembler)
Education: 8th grade
Hearing Info: this was an SSI only case. My client applied for benefits in July, 2007 alleging an onset of August 1, 2006. She last worked full time in 2002, when she was fired from a fast food restaurant. She did try to return to work at a sewing factory in 2006, but lasted only 4 days. She filed for benefits after this work attempt.
My client originally injured her neck in the late 1980’s when she fractured a cervical vertebrae diving into a shallow pool. She was intoxicated at the time. She underwent surgery and recovered sufficiently to get married, bear a child and work various unskilled jobs. Although the record did not reference any substance abuse issues, my client did confide in me that she had abused drugs in her teens and 20’s.
She contends that over the past 10 years, she has been experiencing increasing levels of pain in her neck, mid back, lower back, and that she has carpel tunnel in both wrists. An EMG test did reveal mild to moderate carpel tunnel, but another EMG test did not reveal any radiculopathy in her lower extremities.
My client also has been treated for COPD and emphysema, although she continues to smoke 1 pack of cigarettes a day.
She sees a pain management physician every 3 to 4 months, although we were not able to get the treating doctor to complete a form.
Hearing Strategy: Upon reviewing the medical file in this case, I felt that it was a weak case. Not having a functional capacity form from the treating doctor is a real problem. The record does reflect treatment, but there are no objective tests (i.e. MRI or EMG) that show any significant medical problem.
In addition, my client was not a good witness. She does not express herself well and tends to answer questions about her physical capabilities with statements like “I can’t sit for long period of time,” or “it depends – I have good days and bad days.”
The judge in our case is a relatively new judge who is very direct. At the beginning of the hearing, my client became tearful but the judge showed very little emotion and did not seem to be very moved by my client’s expressions of pain and frustration. The judge did conduct a fairly thorough examination and covered all of the issues that my client had raised with me prior to the hearing.
My questioning was fairly brief – I brought out that my client had failed the 7th grade twice and that her pain did radiate into her arms and legs. I also got her to talk about her desire to quit smoking and her wish that she could return to work.
I will note here that most judges are not very sympathetic to a claimant with COPD or emphysema who still smokes unless the record reflects multiple attempts at smoking cessation.
After taking testimony the judge turned to the vocational witness and asked the following question:
Assume an individual of the same age, education and work background as the claimant who is limited to light work with a sit/stand option. She is limited to simple work and can only occasionally be expected to work on ropes, ladders or scaffolds. She should avoid repetitive use of the hands.
The Vocational Expert testified that these limitations would preclude past work but that she could perform light, unskilled work such as some cashier work or work as a rental clerk.
I then added a pain limitation to the hypothetical – assume pain that would cause a significant interference with attention and concentration such that it would negatively affect the pace of work performed. The VE testified that no work would exist.
Summary: I think that this case boils down to how the judge evaluates my client’s credibility. I found it a little odd that the judge’s hypothetical did not include a pain limitation, but that may be because we had no statement about pain from a treating physician. I do not anticipate a favorable decision here. My client was not a persuasive witness and the absence of a functional capacity form from a treating physician makes it difficult to win.
However, I have been surprised before. The judge’s failure to include a pain limitation in her hypothetical may have been intentional. We will find out in a few weeks.