Back Pain Case Study #3

Claimant Profile: 49-year-old female

Past work: Retail order filler for towel manufacturing company and sewing machine operator.  Consistent worker since late 1970′s

Education: High school graduate

Hearing Info: my claimant applied for disability in October 2005, alleging disability as of her last day of work, which was in June 2005.  The judge works out of the Atlanta ODAR and he has only been on the bench here for a few months. This is my second hearing before him and I do not yet have a sense of his approach to disability claims.  My colleagues here in Atlanta consider him to be fair and reasonable.

Hearing Strategy: That my client’s spine has been damaged was very clear to the judge after reviewing the file, and I think this issue is strong enough to support her claim of total disability.  Plus, we have objective evidence of back problems.  My client has undergone several MRI and x-ray studies, all of which reflect proof for degenerative disc disease with disc bulges at at least two levels.  A 2005 MRI report shows a mild herniation, although currently it does not appear that there is much in the way of spinal cord compression or stenosis of the spinal canal.  In addition to this, claimant’s long time family doctor has given me a functional capacity form which includes several reliability limitations that, if accepted, would support a fully favorable decision.

On the other hand, the MRI reports and medical treatment evidence shows degenerative disc disease which is not very severe and disc bulging as opposed to a really bad herniation.  Many doctors have noted that my client’s condition does not yet warrant surgery and her only treatment to date has been one hip injection, physical therapy and pain medications.

There are also some issues related to her feet, but this case is going to boil down to whether the judge believes that my client can function in a simple, unskilled, sedentary job with a sit/stand option.

Hearing summary: The judge started the hearing by greeting the claimant, her husband and me. Generally, physical impairment cases don’t need witnesses, but the claimant’s husband was a well-spoken gentleman so I felt that I should present him as a witness in case my client got nervous and forgot to bring up some of her limitations.  Normally, a witness is kept outside during the claimant’s testimony, but our judge allowed him to hear his wife testify.

The vocational witness was late; he did not show up until my last couple of questions of the claimant.  Interestingly, the judge did not swear in the vocational witness prior to his testimony, which, in theory, would be grounds for appeal if we lose.

The judge made his introductory remarks and then asked me to present my case.  I started by reviewing my client’s job history, then we discussed the fact as to why she has left her last job.  We discussed her medical condition and I asked her several questions in order to prove that she was not be able to work the entire day.  She justified the fact that she has to sit for 10 to 15 minutes before standing and stretching and that she could repeat the standing/stretching routine for 3 or 4 times. After that she has to lie down.

After taking testimony from the claimant, I asked her husband a few questions about the changes he has seen in his wife and her capacity for performing household duties.  His testimony, not surprisingly, was consistent with hers.

The judge then turned to the recently arrived vocational witness and asked him to describe the claimant’s past work, which he identified as medium and low end semi-skilled.

The judge then asked two hypothetical questions which contained very minimal limitations. The first question was whether any jobs existed in the economy for an individual limited to light, unskilled work, and the second one, if there were any jobs that existed for a person limited to sedentary, unskilled work.  Obviously the answer to both of these questions was “yes,” and the vocational witness proceeded to name some.

The judge then allowed me to ask the vocational witness about the policy of employers of unskilled workers towards absences from work.  The vocational witness responded that such employee could not miss more than 2 days per month.  I then asked him about unscheduled breaks, and he said that few unscheduled breaks can be tolerated.  I asked these questions because the claimant’s family doctor’s functional capacity form I had submitted asserted that she would likely miss more than 3 days per month and need to take multiple unscheduled breaks from work in a workday.

Summary: If the judge accepts the family doctor’s functional capacity form, we are sure to win.  If the judge’s very non-severe hypothetical question reflects what he is thinking, we are not going to win.  I’ll update this case study as soon as I get the results.