This case involved the claim of a 54 year old female with consistent and on-going treatment and solid objective evidence of spinal injury. This case resulted in a fully favorable decision.
Claimant: 54 year old female
Past work: security officer at a county jail housing mentally ill inmates waiting for hearings to determine their competence to stand trial, food service handler at jail, laundry worker at psychiatric hospital
Education: 9th grade, no GED
Hearing info: my client filed for benefits in April, 2009 alleging an onset date in March, 2004. Her date last insured for Title II benefits was December 31, 2009, meaning that we would have to prove that her disability began on or before December 31, 2009.
The hearing was held in August, 2011 before a judge I know well. This judge is always very prepared. While fair, this judge is less likely than others to approve cases – in my experience, she approves less than half of the cases presented to her.
Background and evaluation of evidence: my client originally injured her neck and back in 2002 when she was thrown to the ground trying to subdue a jail inmate. She subsequently reinjured her back as well as her right shoulder in a second altercation with an inmate. Following these incidents, she filed a workers’ compensation claim and began treating with a worker’s compensation doctor.
As is typical in workers’ compensation cases, the employer/insurer sent my client sent my client to a physician pre-disposed to minimize her injury. Over the next two years, my client was prescribed physical therapy and a variety of injections to reduce her pain. She eventually settled her workers’ compensation claim in late 2004.
From 2004 thru 2008, my client continued to receive injections. In late 2008, she moved to Georgia and subsequently filed her Social Security disability claim. She began treating with a pain management doctor in the Atlanta area who continued with the injection therapy and also tried physical therapy, which my client could not tolerate because of pain.
The Atlanta area doctor referred her out for a surgical consult and surgery was recommended. My client declined the surgical option because of her fear that she might be worse off after surgery and less able to care for her family.
As of the date of the hearing, she is continuing to receive injections and nerve blocks, and she manages her pain with medications and by minimizing her activities.
There are several MRI reports in the file which do not show any herniated discs but do show stenosis (narrowing of the vertebral space with possible impact on the spinal cord) and extensive degenerative changes.
Factors in our favor include:
- extensive record of medical treatment
- long work history
- over age 50
- no suggestion of malingering or drug seeking behavior
- my client came across as truthful and credible
- testimony that pain medications made her drowsy and caused bowel and bladder incontinence
- she is diabetic and must consume 6 meals per day
Factors not in our favor include:
- MRI evidence shows mild to moderate issues with her spine – there is no herniated disc
- client did not complete her physical therapy due to pain, and workers’ compensation doctor implied that she was not being fully cooperative
- judge in our case does not readily award benefits
My hearing strategy: I thought this was a good case because of my client’s long work history and the consistency of her medical treatment. We did not, however, have a functional capacity form in the file. I
Hearing report: as my client and I walked into the hearing room the judge looked at me and said “I don’t think this will be a very long hearing. Are you prepared to give me a detailed opening statement?” I replied that I was.
The judge then introduced herself, the hearing assistant and the court reporter. She then introduced the exhibit file into the record and asked me for my opening. I identified the case as a back pain case that arose from my client’s work, that she was a surgical candidate and that conservative treatment had not been successful. I further noted that as a result of her pain medication my client was frequently drowsy, and I noted her periodic bowel and bladder incontinence.
After my opening statement, the judge stated that she was prepared to hear vocational expert testimony and she asked the VE to identify and classify the claimant’s past work. She then posed the following hypothetical question:
Assume an individual who is the same age as the claimant, with the same work history and medical history. Assume
- she is limited to sedentary work but can stand up to 2 hours per day
- she can lift 10 lbs. frequently and 20 lbs. occasionally
- she uses a hand held device (cane) for walking
- she needs to be able to shift from sitting to standing and back frequently
- she needs frequent breaks to attend to dietary needs
- she is right handed and uses a cane in her right hand
- as a result of right rotator cuff surgery several years ago, she cannot engage in overhead reaching and she cannot extend her right arm to full extension in any direction
- because of pain medications and/or pain, her reliability and mental clarity are compromised such that she cannot perform jobs at a normal work pace and her attendance would be poor
Could such a person perform past work? Answer: No
Could such a person perform any work in the regional or national economy? Answer: No.
The judge then turned to the claimant and stated that said that she would be awarding benefits, and the hearing was over.
Summary/Analysis: the judge in this case had thoroughly reviewed the file prior to the hearing and was prepared to issue a favorable decision. Fortunately I had reviewed the record carefully and was prepared to offer a detailed opening statement. I think that the judge was impressed by my client’s long and extensive treatment record and her long work history as well. It is rare that cases are approved in such a summary fashion but it is nice when it happens.