Summary: this case involved the claim of a 61 year old male asserting disability based on chronic and long standing back pain, and weekly migraine headaches.
Client profile: 61 year old male
Education: high school graduate + some college; also 20+ years in army
Past work: assembly line worker at glass tubing factory for 15 years until his retirement due to excessive absences due to chronic pain
Claim background: my client filed for benefits in February, 2010 alleging an onset date in April, 2009. A hearing was held in the Atlanta area in January, 2012 before a judge well known to me who is very direct and wastes little time evaluating claims.
Factors in our favor:
- my client is over age 50
- my client has a long and consistent work history
- my client has a VA service connected disability rating of 70%
- my client tried conservative (non-surgical treatment) at the VA that did not work and he subsequently underwent surgery. There were complications with the surgery and he now has numbness radiating into his left leg
Factors not in our favor:
- most of the records are VA records, which are difficult to read and contain a lot of duplication
- VA physicians rarely comment on functional limitations
- my client alleges that he has suffered with migraines for more than 20 years but he was able to work despite these headaches. I question, therefore, whether the judge would find these headaches disabling.
My strategy: the judge in our case expends very little time on preliminary or background matters. He does not use vocational witnesses. He has an uncanny ability to identify the main issues and to reach what I consider to be an accurate conclusion despite some very short hearings.
I knew that he would ask me for an opening statement that clearly identified the factual basis for our claim and I prepared in outline form a succinct overview of the case. I also prepared my client for a more traditional “full issues” hearing in the event that a different judge might be assigned the case or if our judge wanted more than he usually does.
Hearing Report: as expected, the judge originally assigned to this case was present. He introduced himself and then turned to me to ask if I had any objections to the evidence. He then asked me for an opening, which I provided. I emphasized my client’s 20+ years in the military, his 70% VA disability rating, and 15 year tenure at the glass tubing factory. I discussed his efforts at reducing pain with conservative treatment and his resort to surgery. I noted that the surgery has not been successful in eliminating the numbness.
The judge asked me to confirm the 70% disability rating from the VA, which I did. The judge then announced that he would be finding my client disabled. The hearing was closed and my somewhat bewildered client and I left.
Conclusions: this was a very straightforward back injury case involving an older claimant with a clear and consistent record of treatment and a partially successful surgery. In my view this case would have been approved by 98% of the judge before whom I appear.