Claimant: 44 year old female
Past work: my client worked as a post-closing secretary in several banks and real estate law firms
Education: 8th grade, no GED, cosmetology school
Hearing info: my client filed for benefits in November, 2009 alleging an onset date in November, 2009. The hearing was held before a judge I know very well. This judge is always well prepared, and he frequently develops an opinion about the likely direction of the case prior to hearing testimony. He also does not hesitate to challenge claimants and can appear intimidating. That being said, this judge is a perceptive individual and usually reaches a fair conclusion.
Background: my client has two major medical problems – a heart problem, and a lower back problem following a car accident. Interestingly her heart problem seems to be stable and is not a factor in her disability application. Several years ago, she was experiencing significant chest pain and had undergone several catheterizations but since mid-2008, her heart has been fairly stable and she has not had chest pain or other cardiac issues.
In July, 2009, my client was involved in a fairly serious motor vehicle accident and began experiencing increasing levels of back pain. By November of 2009, the back pain had become significant enough that she left post-closing auditor job at a bank, and in July, 2010, she underwent back surgery to stabilize her L4/5 and L5/S1 vertebrae.
In late December, 2010, she was released by her surgeon to return to work and she accepted a job with another bank. She began working full time but by February, 2011, she was working about 32 hours per week. She remained at this job at not quite a full time level until late May, 2011 when she was laid off.
In September, 2011 she accepted a position at a mortgage company, which she quit two days before our October, 2011 hearing.
Hearing Strategy: the issue in this case was whether the claimant was entitled to an on-going period of disability or only a closed period of disability. I felt confident that the judge would accept our argument that from the November, 2009 onset (when she was laid off) through December, 2010 (when she accepted a new position) my client was disabled. In support of this closed period, we had an event (the car accident), invasive treatment (surgery) and a reasonable recovery period. The problem here is that the six month return to work period looks more like a regular return to work than an unsuccessful work attempt.
Hearing Report: I arrived early at the hearing office and asked to speak to the judge prior to the start of the hearing (this is known as a “pre-hearing” conference). When I entered the hearing room the judge greeted me then said “I assume you are going to try to convince me that this is more than a closed period case.” We discussed the issues and he noted that the last medical record in the file was the surgeon’s note from February, 2011 which stated that the claimant was doing well, although still complaining of pain.
I advised the judge that my client had seen her family doctor who took x-rays which showed instability in the spine and that she was scheduled to meet with the surgeon three days after the hearing.
I should mention that financial issues and lack of insurance are an issue for my client. Her lack of followup office visits and her lack of post-surgery rehabilitation were a function of her lack of financial resources.
To his credit, the judge recognized that it is possible that the seemingly positive results of my client’s surgery were short term and that her condition may have regressed. At that point he asked me to bring the claimant in to begin the hearing.
At that point, I brought my client in and the judge opened the hearing by swearing in the claimant and vocational witness and accepting the record into evidence. He then read into the record that he and I had discussed the case in a pre-hearing conference and that he was prepared to find in favor of the claimant for a closed period but he would be prepared to leave the record open for 30 days for me to obtain updated medical records from the surgeon and specifically information from the surgeon regarding the current state of my client’s back pain.
The judge then asked the claimant a few questions about her past work and about her pain levels before closing the hearing.
The day after the hearing I drafted a letter to the surgeon asking him to check off “yes/no” boxes to the following questions:
- – does my client need additional surgery?
- – are her complaints of pain and numbness consistent with her current examination
- – are her assertions that she needs to lie down every 4 hours consistent with her current examination?
Analysis: because I knew that the judge in this case is a “bottom line” person I felt comfortable meeting with him prior to the hearing to discuss the threshold issue in this case – is this a closed period case only or is it one of on-going disability.