Summary: 33 year old male alleging disability based on multiple sclerosis
Client profile: my client is a 33 year old male with past work as a warehouse worker who was diagnosed with multiple sclerosis in the spring of 2017. He worked through the summer of 2017, then resigned when he had a flare-up and was hospitalized
Claim background: my client filed for SSDI benefits in the summer of 2017, shortly after he resigned from his job. A hearing was held in an Atlanta area hearing office in the spring of 2019.
Factors in our favor:
- multiple sclerosis is a chronic degenerative condition with no cure. Current medical treatment is designed to preserve but not restore function. My client’s MS diagnosis has been confirmed by MRI
- my client has a consistent work history
- the judge assigned to our case has a higher than average approval rate
- we have a statement from an MS specialist treating physician stating that my client cannot perform any type of work
Factors not in our favor:
- my client is very young to file for disability
- my client cannot afford a family doctor so the only treatment he gets is at an MS clinic. He visits the clinic at a reduced fee schedule 2 to 4 times per year
My strategy: despite my client’s youth, I felt that the medical record clearly indicates that he has a firm MS diagnosis with evidence of significant limitation. My client has poor balance, vertigo, dizziness, lower body weakness, fatigue, poor sleeping patterns, low energy, cognitive loss and chronic headaches. There is nothing in the record to suggest malingering or symptom exaggeration. We also have a statement from my client’s neurologist, a well know physician, that my client is “applying for Social Security disability, and I feel that this is appropriate as he is unable to perform any occupation.” Further, his “current treatment plan is designed to slow the disease’s progression; however [he] will not likely experience any significant improvement in his current physical abilities.”
The treating doctor went on to say that my client “experiences significant symptoms which make his ability to perform any occupation unrealistic. He experiences bilateral gait dysfunction that manifests in weakness and fatigue in the lower extremities. His muscle weakness and decreased balance result in high risk for falls and decreased function of lower extremities…He requires frequent rest breaks following activity due to severe fatigue.”
I felt that my client’s complaints and expected testimony are consistent with the medical record and the treating neurologist’s assessment so my goal for my direct examination was to elicit testimony from my client describing his symptoms.
Hearing Report: my client entered the hearing room slowly, as he walks very slowly using a cane. The judge in our case does not spend a lot of time with small talk so we immediately went on the record. After swearing in my client and the vocational witness, the judge admitted the exhibit file into evidence and asked my client some brief background questions. The judge then asked my client to describe his work over the past 15 years so that vocational witness could better understand my client’s work experience.
The judge then turned to me asked me for a brief opening, which I provided. I then started my direct examination by asking my client when he first noticed the symptoms of what would later be diagnosed as MS. He testified that about 6 months prior to stopping work, he noticed balance problems, lower body weakness and mild dizziness. He continued to work as a forklift driver until mid-summer 2017 when he woke up one morning with a severe case of vertigo and loss of balance.
Following this initial hospitalization my client’s symptoms did not quickly improve so he was asked by his supervisor to resign his position. Thereafter my client had an MRI exam which showed radiological evidence of multiple sclerosis (lesions on the brain) and he began treatment.
Since mid-2017 my client has been undergoing continuous treatment with an MS center at a well known Atlanta area hospital. Currently he receives Ocrevus infusions designed to preserve his function.
I asked additional questions about my client’s symptoms including near constant vertigo, dizziness, overwhelming fatigue, generalized weakness (especially in the legs), unstable gait and headaches.
My client did a good job explaining the frequency of his symptoms and how they interfered with his daily activities.
Following my direct examination the judge stated that he had no additional questions and he turned to the vocational expert witness (VE).
The judge asked the VE to classify my client’s past work, which he identified as:
- industrial truck operator (semi-skilled, medium/performed as heavy)
- warehouse worker (unskilled, medium)
- short order cook (semi-skilled, light)
The VE testified that none of these jobs produced “transferable skills.”
The judge then asked the VE three questions:
Question 1: assume a hypothetical individual who is the same age as our claimant with the same education and work history. Assume further this individual is limited to light work, with the following limitations:
– occasional use of ramps and stairs
– occasional balancing, kneeling and stooping
– no crouching or crawling
– no use of ladders, ropes or scaffolds
– no concentrated exposure to work hazards or dangerous machinery
VE response: such a person could perform the claimant’s past work as a cook as well as other light, unskilled jobs in the national economy, including:
– routing clerk
– sales attendant
– marker
Question 2: same limitations as question #1 with the following additional limitations:
– fingering/fine motor manipulation of the hands limited to occasional
VE response: such a person could not perform any of the claimant’s past work. He could perform the job as a sale attendant as well as:
– furniture retail consultant
– storage facility clerk
Question 3: assume that because of pain, symptoms of multiple sclerosis, fatigue and medication side effects, our hypothetical person would be off task for 20% of the day and/or would be absent from work 3 or more days per month.
VE response: such a person could not perform any competitive work in the regional or national economy.
The judge asked me if I had any questions and I posed the following:
Question 4: assume the profile set out in question #1 but add the following:
– requires a cane or other assistive device for walking
– requires a 30 to 60 minute unscheduled break during the workday, two to three times per week because of severe headaches
VE response: such a person could not perform any competitive work in the regional or national economy.
Conclusions: I think that the judge will approve this case. I was a little concerned about the first two hypothetical questions because the limitations included are not “disabling.” But, upon reflection, the first two questions include nothing about fatigue, muscle weakness or headaches, which are symptoms common to MS and which are noted multiple times in my client’s medical record.
If the judge wanted to deny this case he could have included these symptoms in questions 1 and 2 at a mild level and the VE would have been able to identify multiple jobs. By not including these symptoms at all the judge was satisfying SSA’s QA (Quality Assurance) people that he considered all factors. At least that is what I am hoping.
Assuming the judge adopts question #3 or my question (#4), will receive a fully favorable decision.