Sample On-the-Record Argument that
Resulted in a Favorable Decision

February 3, 2009

Hon. Tom Smith
Administrative Law Judge
Office of Disability and Review
245 Peachtree Center Ave.
Suite 500, Marquis I
Atlanta, GA 3030

Re: Angela M. Xxxxx
Claim #:  111-11-1111

 

Dear Judge Smith:

As your files will reflect, I represent Angela M. Xxxxx with regard to her claim for Title II benefits.  A hearing in this case is scheduled for February 15, 2009 at 9:15 AM.  Please allow this letter to serve as my pre-hearing brief and request for an on-the-record decision.

Background: the claimant is a 63 year old female with a high school education.  She stands 5'4" and weighs approximately 260 lbs.  Ms. Xxxxx applied for benefits on November 28, 2005 and alleges disability as of December 17, 2004, which was her last day of work as an administrative assistant for ABC Supply, Inc.   Ms. Xxxxx’s date of birth is April 1, 1945, meaning that she was 59 years old at the time of alleged onset.   As there is a physical element to Ms. Xxxxx’s claim for disability, grid rules 202.01 and 202.02 may apply.

The claimant’s past work is as follows:

The claimant alleges disability based on both physical and mental health factors, including degenerative disk disease, insulin dependent diabetes, depression, cognitive impairment, Acute disseminated encephalomyelitis (a demyelinating disease that is part of the multiple sclerosis family), urinary incontinence, and bilateral carpal tunnel.

Summary of Medical Record:

Claimant Xxxxx has a long and complex medical history complicated by significant obesity and insulin dependent diabetes.  The claimant’s most longstanding complaint relates to chronic back pain which has been present for several years prior to the alleged onset date as reported by the claimant and as shown in her medical record.

Dr. Stinson, Dr. Lister and Dr. Young all note that the claimant reported low back pain with radiating into the right lower extremity in the early 2000's.  By October, 2004, however, this back pain had become worse and was accompanied by numbness and pain in both arms, which the claimant reported to her family physician, Dr. Timothy Winter.  Dr. Winter referred the claimant to Dr. Sam Stinson, who ordered a CT of the neck on October 16, 2004 which showed large bone spurs causing compression of the nerves.  Dr. Stinson diagnosed bilateral carpal tunnel syndrome as well as degenerative disk disease. 

In December, 2004, the claimant resigned her position with ABC Supply Company because of the carpal tunnel pain issues as well as chronic back pain.  At no point since leaving ABC Supply has the claimant’s condition improved to the point where she could return to work.   

Immediately following her resignation, Dr. Winter referred the claimant to Dr. Gary Lister, an orthopedist.  Dr. Lister ordered an MRI of the spine in January, 2005 which showed multi-level degenerative disk disease, several bulging disks, a herniated disk at L2/3, stenosis and endplate spurring and disk bulging at L4/5.

Dr. Lister then proceeded to treat the claimant conservatively, with little benefit.  Physical therapy in February, 2005 produced no results.  Epidurals, and then a facet block with Dr. Anton produced no relief.

With conservative therapy showing little benefit, Dr. Lister referred the claimant to the Emory Spine Center (Dr. Sang Young) for a surgical consult.  Dr. Young wrote Dr. Winter that the pain in the claimant’s back was brought on by almost any activity and that the claimant had difficulty getting out of her chair.  Dr. Young referred the claimant back to Dr. Winter for medication management and weight loss.

Dr. Lister then referred the claimant in June, 2005 to a neurosurgeon, Dr. Charles Warren, for a second surgical consult.  Dr. Winter concluded that at some point the claimant will probably need a fusion but because of her severe obesity, diabetes and heart condition, the risks are too high for surgery. 

The claimant continued to treat with Dr. Lister and Dr. Wilson under a pain management protocol from 2005 to the present.  Dr. Wilson’ treatment note records reflect the claimant’s consistent complaints of pain as well as Dr. Wilson’ assertions that she cannot work.

During the time that the claimant was being treated for back, leg and upper extremity pain and discomfort, the claimant also began experiencing noticeable non-exertional impairments relating to her concentration, cognitive capacity and balance.  In late 2008, the claimant was diagnosed with a condition called acute disseminated encephalomyelitis, which is a demyelinating disease in the multiple sclerosis family. 

As a result of this condition, which treating neurologist David Owens calls an “aggressive demyelinating process” the claimant walks with a cane, uses a wheelchair on a regular basis, and can no longer perform basic activities of daily living such as dressing herself, driving, cooking or keeping house. 

Argument: Claimant Angela Xxxxx left a good paying, fulfilling administrative assistant job in December, 2004 because of back pain, and numbness and weakness in both arms.  Subsequent treatment and documentation by MRI, CT and EMG testing confirm the existence of diffuse degenerative changes throughout her spine and bilateral carpel tunnel.  Because of her size and diabetes, the claimant is not a surgical candidate and conservative treatment (physical therapy, epidurals, facet blocks) have not helped to alleviate the pain and discomfort.

More recently the claimant has experienced significant cognitive decline, balance issues and generalized weakness because of an aggressive demyelinating disease that is a form of multiple sclerosis.

Treating physician Timothy Wilson has observed and treated the claimant medically for over ten years and has participated actively in her care.  At counsel’s request, Dr. Wilson completed a functional capacity evaluation which identifies vocational limitations relating to job attendance and reliability that would preclude both past work and any other work.  If Dr. Wilson’ functional capacity evaluation is accepted as being representative of the claimant’s condition since onset, her functional capacity would be so impaired as to preclude any competitive work.

In addition, the claimant most likely could be found disabled based on grid rules 201.01, 201.02,  202.01 or 202.02 based on the claimant’s age, education and skill background.

The claimant therefore respectfully requests that your Honor review the medical evidence in this file and issue a decision finding her DISABLED as of the December 17, 2004 onset date.  Counsel further requests that your Honor receive and approve the fee agreement entered into between the claimant and counsel and previously submitted

VERY TRULY YOURS,

GINSBERG LAW OFFICES, P.C.

 /s/ Jonathan Ginsberg

 

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