Summary: 47 year old male with long, consistent work history claims disability based on chronic, but non-surgical, lower back pain with radiating numbness
Client profile: 47 year old male with 11th grade education and long work history as electrical contractor (includes ed and prw)
Claim background: my client filed for disability benefits in January, 2013. A hearing was held in an Atlanta area hearing office in January, 2015.
Factors in our favor:
- my client has a long, consistent work history
- my client has consistent medical treatment that includes MRI evidence showing disc changes and spinal stenosis
- my client’s treating doctors note that non-surgical treatment (physical therapy and epidurals) have failed and my client is now on long term pain management
- my client comes across as being very believable
Factors not in our favor:
- my client had not undergone back surgery
- over the years my client has done a little part time work for cash
My strategy: I felt that my client had a strong case based on his work history and the medical record. I decided that providing the judge a clear timeline of my client’s treatment and work history would highlight his sincerity and credibility.
Hearing Report: My client and I entered the hearing room and were greeted by the judge. After dispensing with preliminary matters the judge started the hearing by asking me for an opening statement. I explained that this case was primarily about lower back pain which came about over 10 years ago when my client lifted a 50 lb. bucket awkwardly. Thereafter he sought treatment with a chiropractor, then eventually with an orthopedist who administered epidural steroid injections.
My client continued to work despite his discomfort. After almost 8 years of trying to manage the pain with medications and injections, my client finally lost his last job – a supervisory position – because he could not sit or stand long enough to perform his job duties. An MRI report from 2012 documented multiple herniated discs with a narrowing of the spinal canal and the orthopedist administering the epidurals noted that surgery was needed but that my client’s insurance would not authorize.
I argued to the judge that my client most likely herniated his L3/4 disc back in 2004 and that since that time his condition has worsened due to scar tissue formation and arthritis formation.
I also pointed out that my client has a long history of gout which is not under control and that he experiences a great deal of fatigue due to side effects of medications and uncontrolled sleep apnea.
The judge then started the questioning by asking my client about his past work. With each job discussed, the judge asked the vocational expert if there was enough information to classify the job (there was for each job). I felt that this discussion of jobs helped my client because it showed a continuous history of work – a long work history is always a positive in a Social Security case.
The judge then turned the questioning over to me. I started by asking my client to explain why he left his last job. He explained that his last job involved inspection of construction sites and required him to walk. He stated that after 5 to 10 minutes of walking he had to stop and sit down, and that his employer eventually offered him the option of resigning so that he could collect unemployment.
At this point the judge spoke up and asked my client about his collection of unemployment. As you may know, when a person collects unemployment he is saying that he is ready, willing and able to work. Some judges take the position that a claimant should not be able to collect both SSDI and unemployment while other judges do not see the inconsistency. I have always argued that an unemployment recipient is saying that he is ready, willing and able to try to perform any job, but that a claimant is not in a position to make a medical determination.
Fortunately our judge does not see an inherent contradiction with SSDI and unemployment benefits. He did ask my client if he fulfilled the requirements of his unemployment – i.e., did he look for work. My client testified that he sent out resumes and made calls but got no interviews.
I then resumed questioning by asking my client about his attempt to return to school. He testified that he had enrolled in a community college with the hope of picking up computer engineering skills that would not require physical exertion. Unfortunately this attempt only lasted a month before he had to drop out.
I continued by reviewing my client’s medical history from the time of his 2004 back injury. My goal was to demonstrate that my client sought treatment and he continued to work, and that as time passed his condition continued to worsen.
We then turned to the secondary medical issues – the gout and the fatigue. My client testified about both of these issues.
I finished my direct examination by asking my client how long he could sit, stand, and walk. My client stated that he could sit for about 5 to 10 minutes a time, stand for 5 to 10 minutes at a time and walk for 5 to 10 minutes at a time. Further, he spends most of his time in a recliner or in bed and has very little productive time during the day.
The judge then asked a question that could have created some issues for us. The judge noted that my client’s family doctor had noted in his record that my client was earning some money driving a truck. My client stated that during the summer, a friend of his was moving and in order to make a few dollars, my client moved some boxes using his pickup truck. He did not load or unload but he did drive.
The judge asked my client if he had done any other part time work for pay or as a volunteer. My client thought for a minute and said that once or twice over the past few years, he had driven a truck to transport items but he never loaded or unloaded, and that each of these “jobs” lasted about a week and that he was paid cash.
In this case, this “work” did not cause any issues but the lesson I would draw from this experience is that judges look at medical records carefully for evidence of work and that my client would have been wise to bring up his work attempts rather than have the judge find them. I think that in this case, my client had strong enough credibility established that the judge did not feel that he was hiding anything but in a lesser case, this off the books work could cause problems.
The judge then turned to the vocational witness and asked the VE to discuss my client’s past work.
The VE identified each of my client’s past jobs – including their skill and exertional levels. The judge then posed only one hypothetical to the VE:
Assume an individual the same age as our claimant, with the same work history and education. Assume further I limit this person to a modified level of sedentary work:
- can sit up to 5 hours in a day
- can stand/walk up to 1 hour in a day
- limited to unskilled work
- occasional use of stairs and ramps
- no use of ladders, ropes or scaffolds
- no exposure to dangerous equipment
Could such a person perform the claimant’s past work or any other kind of work?
VE: no
The judge asked me if I had any questions- I did not. The judge the closed the hearing and once we were off the record he asked me to explain the significance of his question to my client.
Conclusion: my client came across as very credible due to his long work history as well as his medical record. The objective MRI test combined with the supportive functional capacity form from my client’s primary care physician made this case very strong.
