April 6, 2017
Hon. Cynthia Jones
Administrative Law Judge
Dear Judge Jones
I represent claimant Jane Smith with regard to her claim for SSDI benefits. A video hearing in this case is scheduled for Wednesday, April 12, 2017 at 12:15pm EST. Please allow this letter to serve as my pre-hearing brief and request for on-the-record decision in this case.
Claimant Smith is currently 65 years old – her date of birth is March 17, 1952. The claimant has a high school education and attended two years of college. Ms. Smith has a long work history including 6 ½ years at XYZ as a customer service representative (October, 2008 – January, 2014) and almost 10 years at ABC as a customer service representative and as an assembler (April, 1994 – August, 2004).
The claimant is 5’6″ and weighs approximately 210 lbs.
The claimant filed for Title II benefits on January 8, 2014, alleging an onset date of September 15, 2013. She is fully insured for Title II benefits through December 31, 2017.
Claimant Smith alleges disability based primarily on congestive heart failure, which gives rise to fatigue, shortness of breath and anxiety. The claimant has also been diagnosed with severe obstructive sleep apnea, and she is a non-insulin dependent diabetic.
The medical record in this case documents the claimant’s on-going treatment for congestive heart failure.
In October, 2013, while on furlough from her job at XYZ Corp., the claimant began experiencing extreme fatigue and shortness of breath. Dr. Sam Smith, the claimant’s primary care physician, referred her to cardiologist Tom Jackson for treatment (1F/11).
On October 15, 2013, the claimant saw Dr. Jackson who noted an abnormal EKG and hypertension and performed an EKG on the claimant. The EKG revealed a left ventricular ejection fraction of 20%. An ardiogram revealed wall motion abnormalities consistent with coronary artery disease (3F/28). Dr. Jackson diagnosed small vessel coronary artery disease with severe global hypokenesis (2F/12-13).
The claimant will testify that because of fatigue and shortness of breath, she was unable to perform the duties of her job after October, 2013. She did attempt to return to work in January, 2014 but was unable to complete a workday because of her symptoms – she was thereafter medically retired by XYZ Corporation. The claimant filed for SSDI benefits on January 20, 2014 at the time of her medical retirement.
The claimant has continued to treat with Dr. Jackson and his colleague Dr. Joseph Singh at Atlanta Heart Associates from October, 2013 through the present. Initially, Drs. Jackson and Singh attempted to treat the claimant with medications including Coreg (a beta blocker) torsemide and eplerenone (diuretics), lisinopril (to reduce blood pressure). However these medications alone did not reduce the claimant’s symptoms of fatigue and shortness of breath (5F/4).
In March, 2014, the claimant underwent a surgical procedure to insert a pacemaker to combat her symptoms (5F/4). Initially the pacemaker did improve the claimant’s energy level, but as the pacemaker was adjusted during 2014, the claimant began experiencing uncomfortable side effects. Specifically she felt a sensation of her stomach “jumping” uncomfortably – diagnosed as diaphragmatic stimulation by Dr. Singh (14F/27).
In November, 2014 the claimant was evaluated by Dr. Suveen Reggie for excessive daytime sleeping and snoring. Dr. Reggie diagnosed obstructive sleep apnea and prescribed a CPAP unit, which the claimant has had difficulty tolerating (17F).
In December, 2014 Dr. Singh admitted the claimant to Piedmont hospital to perform a lead revision on the pacemaker, but decided instead to install a new pacemaker (13F/4-5). The claimant continue to experience discomfort so on December 11, 2014, Dr. Singh turned the pacemaker off (14F-7, 11).
After the pacemaker was turned off the claimant again began experiencing extreme fatigue and shortness of breath. Dr. Jackson’s notes of April 20, 2015 document the claimant’s complaints of severe shortness of breath with even minimal exertion (18F/19).
On April 23, 2015, Dr. Jackson again turned the pacemaker back at a lower power. The claimant will testify that she did note some improvement but as of October 1, 2015 continued to experience shortness of breath with minimal exertion (18F/11).
On October 15, 2015 Dr. Jackson noted that the claimant might be a candidate for a heart transplant and referred her to the Emory University cardiology unit. The claimant has been seen twice by Dr. Stan Caskey at Emory who does note decreased functional status due to cardiac issues but that the claimant is not yet a candidate for a transplant (20F).
Throughout 2016 and into 2017 the claimant has continued to treat with Drs. Jackson and Singh who are adjusting the pacemaker and the claimant’s medications. An echocardiogram in April, 2016 shows the claimant’s ejection fraction to be 35%.
The claimant will testify that she continues to experience episodes of extreme shortness of breath that precludes any physical activities including activities of daily living such as cooking, cleaning and housework. She will testify that getting out of bed in the morning is difficult and that she becomes short of breath even while speaking on the phone.
The claimant will testify that her diuretic medications cause her to need to urinate frequently – sometimes once and hour or more.
The claimant will also testify that because her activities are so curtailed she feels depressed and has been prescribed Lexapro by Dr. Jones, her primary care physician.
Argument: claimant Smith has been diagnosed and treated for congestive heart failure. Her condition cannot be controlled by medications alone, she has side effects (frequent urination from the diuretic) from her medications, and she has had uncomfortable side effects with a pacemaker that has required numerous adjustments. The claimant’s condition has not yet deteriorated to the point where she needs a heart transplant, but she continues to note severe shortness of breath and fatigue.
We contend that claimant Smith’s diagnosed congestive heart failure and associated symptoms have so eroded her exertional capacities that she would not be able to function at any type of work.
It also appears that Grid Rule 201.06 or 202.06 may apply here (assuming she is limited to sedentary or light work) in that the claimant was 61 years old as of her onset date and does not have transferrable skills into skilled work.
Thank you for your consideration of this claim.
VERY TRULY YOURS,
GINSBERG LAW OFFICES, P.C.
by: JONATHAN C. GINSBERG