This case involved the claim of a 41 year old female with chronic neck and back pain following a “roll over” car accident. Despite two surgeries, her level of pain has not diminished and she experiences severe depression as well.
Claimant: 41 year old female
Past work: operations manager for a real estate development company, legal assistant, sales associated
Education: high school graduate
Background: although relatively young, my client had a history of degenerative back problems including a prior surgery several years ago and later bulging discs and even a small herniation. In the fall of 2008, she was involved in a bad motor vehicle accident on the highway when she was run off the road, causing her car to roll over 3 to 4 times. Initially she sought treatment with pain management physicians but by 2011, the pain was so severe that she underwent cervical surgery, then lumbar surgery a few months later.
As of the date of the hearing in November, 2011, my client stated that she remained in a great deal of pain. As her doctors explained to her, the surgeries were designed to relieve immediate danger to her spinal cord but given the arthritis in her spine and the degeneration of her discs, she should not expect much in the way of pain relief following surgery.
As a result of her chronic pain my client has also become severely depressed and a consultative psychological evaluation in the file documents a number of significant work activity limitations arising from the depression, including problems with attention and concentration, emotional stability at work and reliability.
Factors in our favor included:
- a traumatic event (the car accident) that is a reasonable cause of my client’s back pain
- extensive medical documentation showing consistent treatment
- history of two back surgeries after the alleged onset date
- absence of any suggestion of malingering or medication seeking behavior
- multiple vocational limitations contained in psychological consultative evaluation
- a judge with a favorable approval/denial ratio
Factors not in our favor included:
- my client, by her own admission, has adult ADD and she tends to talk very quickly. During the hearing she interrupted the judge several times while he was asking questions.
- I was a little surprised that my client has obtained so little pain relief following her surgeries and I had some concerns that the judge might find my client’s subjective experience of pain out inconsistent with a patient post surgery
Hearing Strategy: I felt that the medical record really spoke for itself. My client looks like she is absolutely miserable and given her extensive work record, I felt that she would be a credible witness. I believed that the judge in our case would find my client believeable and I did not expect that we would have any problems gaining an approval.
Hearing Report: the judge opened the hearing by introducing himself, the hearing reporter and the vocational witness. He made a brief statement about the issues (i.e. whether the claimant could work) and he asked me for an opening statement, which I provided.
The judge then turned to my client and began questioning her about some of the specifics I had noted in my opening. For example, he asked her to describe her accident and he spent about 10 minutes discussing the accident, the fact that the other driver did not get a ticket and what she did with her settlement money.
I got the sense that the judge was primarily focusing on my client’s credibility as a witness, as the medical record is fairly complete. Nevertheless this manner of questioning is very different from what I normally hear in disability hearings.
After the discussion about the car accident the judge turned the questioning over to me. I took a more conventional route asking my client about her pain and how it impacted her on a day to day basis. At one point the judge interrupted me and asked my client to describe her pain on a 10 point scale – she answered that it was always at a 7 or 8.
After I finished my direct examination the judge turned to the vocational witness and swore him in, and asked the VE to describe past work. The judge then asked one hypothetical question:
Assume we are discussing a hypothetical person of the same age as the claimant with the same education and work background. Assume further I find that she experiences pain at level 8 on a 10 point scale and that she take pain medications which make her extremely drowsy. Could such a person return to past work or any other work?
A: No, because the level of pain you describe would cause an unacceptable degree of interference with attention and concentration and drowsiness that would preclude all work.
The judge then advised my client that he appreciated her attendance and would issue a decision as soon as he could.
Summary: the judge will issue a favorable decision in this case. The medical evidence in this case is overwhelming and my client came across as sincere and clearly appeared to be in pain, stressed and upset. The judge in our case tends to grant a higher than average number of cases and he will approve this one as well.
