Back Pain Case Study #4

Claimant: 50-year-old male

Past work: Production manager at printing company

Education: High school graduate

Hearing Info: My client applied for benefits in June 2004, alleging a disability that began in January 2002. I had previously represented this claimant in a long-term disability case in which we were successful in obtaining benefits.  The judge in our case was a new judge at one of the Atlanta area hearing offices.

Hearing Strategy: I was pleased to note that the medical record in this case reflected many years of on-going treatment and consistency in the diagnosis.  The orthopedic and pain management physicians noted that my client’s cervical spine has been damaged, which is entirely consistent with my client’s complaints of neck, upper back and radiating arm pain.  Similarly, MRI evidence showed a damage of the discs in the lower back as well, which we could relate to the lower back pain my client was suffering from.

On the other hand, my client’s condition did not allow him for surgery.  During the hearing, I made him justify that he had not undergone surgery because just after stopping work, a physician advised him that surgery would be extremely risky and could leave him paralyzed.  The medical record was not entirely clear that this warning was anything different than a discussion of the risks that may be associated with any spinal surgery.  One of the treating physicians noted that my client would “eventually need surgery.”

I raise this point because it raises the question of how a Social Security judge would interpret medical records like this.  On one hand, Social Security judges are not supposed to consider a negative factor likethe claimant’s unwillingness to submit to surgery.  On the other hand, could they conclude that the treating doctors believed that a non-surgical treatment (such as epidurals and nerve stimulation) was sufficient to control the pain?

My client’s medical record also showed a diagnosed mental health problem.  My client had already advised me before that the mental health problems were common to his family – his father had committed suicide and a sister had attempted suicide.  My client had been prescribed several very powerful psychotropic medications to stop his mood variations, with the net result being that he had a very flat affect and showed very little energy or enthusiasm for anything.  He testified that he experienced memory lapses, panic attacks, anxiety and occasional periods of deep depression.

The working theory of my case going into this hearing was that my client had a documented orthopedic/neurological problem that probably was sufficient on its own to keep him from performing competitive work, but combined with the addition of an emotional instability component, he cannot be a reliable employee.

Hearing summary: The judge initiated the hearing by introducing himself, the vocational witness and the hearing reporter and he never asked for an opening statement.  He also permitted the claimant’s wife to remain in the hearing room during her husband’s testimony. This is unusual because I had identified the wife as a witness to come testify about her husband’s mental health issues.

The judge then started conducting a very thorough examination of the claimant. He asked about past work, the claimant’s education, his living arrangements and about his daily activities.  He then asked the claimant about his medical conditions in detail.  It was understood that the judge had given a thorough look through the file before the hearing.

After the judge completed asking his questions, I asked a number of follow up questions designed to identify specific activity limitations that might disable work activity.  I pointed out that he used a cane and asked about his experience of pain.

Next, I called upon my client’s wife and asked her to tell about the mental state of her husband. She testified that he was often tired, had very little energy and motivation and had little interest in going out of the house.

Following the testimony, the judge turned to the vocational witness and asked a series of hypothetical questions.  When judges ask such questions, they want identify a series of physical or mental health limitations that can interfere with work activities.  Generally, by the time that the judge has formulated his hypothetical, he has most likely made up his mind about whether or not to approve the case.  Judges (like attorneys) know what vocational witnesses will say – they ask the hypothetical question so that they will have evidence that can be used to support their decisions.

Hypothetical questions to a vocational expert often represent line drawn by the judge.  “Mild to moderate pain” is not going to result in vocational witness testimony that will eliminate many jobs.  “Moderate to severe pain” will eliminate jobs.  For this reason, I get concerned if all of a judge’s questions include mild to moderate limitations.

Here, two of the judge’s hypothetical questions referenced “mild to moderate” limitations in both physical and mental areas of functioning.  The last question was essentially asked to the vocational witness in order to assume that the claimant’s testimony was accepted as credible – this resulted in a response of “no jobs.”

My questions were not as sweeping as the judge’s third question – I explored in a couple of areas where I felt the claimant had severe limitations – pain and concentration.

Summary: I think that this case boils down to a question of whether the judge believes that the medical record documents were sufficiently at severe levels of impairment to justify a favorable decision.  My assumption is that the judge will not give a great deal of importance to the claimant’s testimony.  If the claimant does not prove to be truthful or credible, that will hurt him. Of course what we expect is a believable and credible testimony.  Assuming that the testimony is believable, does the medical record on its own merits support a favorable decision?

I don’t have any feel about whether this judge expects something more than non-surgical treatment and documented evidence of a significant mental health problem. I would estimate that around 75% of the judges I see would approve this case – hopefully this judge will fall in that majority.