Back Pain Case Study #5:
Multi-level Decompression & Fusion, then
Return to Work (CLOSED PERIOD Case)
Claimant Profile: 60-year-old male
Past work: truck driver, maintenance technician, cashier
Education: 10th grade + GED
Hearing Info: My client applied for benefits in July 2006, alleging disability as of May 1, 2006. When he stopped working as a maintenance technician in May, 2006, my client had already undergone 3 back operations – lumbar spine surgical procedures. Prior to the 4th surgery, the physician’s notes indicated that my client had severe low back pain spreading into his legs. The notes also illustrated severe spinal stenosis, meaning that scar tissue and/or disc material was causing his spinal canal to become narrow. The 4th surgery was a decompression & fusion of the vertebrae from L2-S1 (most fusions involve only one or perhaps two vertebrae, this involved several). Following surgery, my client experienced a very slow recovery. He was fitted with an external brace, which he found very uncomfortable, and for a year, he was unable to walk. Finally, after about 2 years, my client returned to work as a truck driver, mainly because of financial pressures and pressure from his wife to earn money in order to cover his household expenses. As he has returned to work and has been working for over 8 months, I felt that we would not be able to argue for on-going disability. Instead, we would need to argue for a CLOSED PERIOD of disability – May 1, 2006 – May 30, 2008 – in which he was not able to work.
Hearing Strategy: I felt that the medical record was fairly clear that my client had a significant spinal problem that would support a claim for disability in the said period. His treating doctors documented both the extent of his problem and his slow recovery, thereby making the case a strong one.
If my client hadn’t returned to work, I would have argued for on-going disability and most likely would have won. But since he had returned to work and had been working over 8 months with success, we had to stick with the closed period argument.
The main issues in my mind were the dates of the closed period. In a Title II disability case, no benefits are payable for the first five full months of disability. This means that if disability is awarded as of the 1st of a month, that month counts when calculating the 5-month waiting period. If disability is granted on the 2nd or any other day of the month, that month does not count for 5 month waiting period purposes.
Therefore, here I decided to argue for disability starting May 1, 2006, rather than May 4 or 5. May 4, 2006 was the date that my client received a work excuse from his doctor, although his pain was clearly at the same level as it was May 1.
The other thing I was required to do was extend the closed period through May, 2008. The file contained a note from the treating orthopedist saying that my client could not return to work until June 1, 2008 because of his inability to work. But since there was a pressure from his wife, my client had actually accepted a job as of April 15, 2008. When we discussed this job, my client acknowledged that he was in training as of May 1st, 2008 and was not actually driving a truck until mid-June, and that he was only appearing at the work site for only few hours a day.
The judge in our case was a new judge who was not known to me. A more experienced judge would have narrowed down the issues to the onset and end date of the closed period, but our judge required me to present my entire case. Although presenting the entire case took only 15 minutes, it was not really required as the medical record clearly documented the nature and extent of my client’s orthopedic and neurological problems.
In any case, after going through the case I noted to the judge that the main issue in my view was the onset and end date of the disability, and that I intended to present evidence about that. She was agreeable, so I elicited testimony from my client that his pain, discomfort and limitation of motion was debilitating on or before May 1, 2006 and that the onset of his disability was May 1, 2006.
I also presented the argument that the “work” he was doing in April and May of 2008 was part time and gave him the flexibility to come or go as he pleased, and that he did not even start full time truck driving until August, 2008.
The judge asked me for a closing argument and I restated my contention that the onset of this case was May 1, 2006 and that the closed period should extend through May 31, 2008.
The judge then realized that she had no questions to ask from the vocational witness and she closed the hearing then and there. She also stated that she “was not yet comfortable with bench decisions” and would issue a written decision, and she told the claimant that “your lawyer will explain what this all means.”
Summary: It was a very strong case and the claimant’s age (60 years) made the case stronger. We also had the presence of an objective medical problem (multiple prior surgeries, a current multi-level disc disease and surgical situation) and well-documented slow recovery issues. A more experienced judge would have required not more than 10 minutes to identify the issues involved and to elicit testimony on those points. I also think that this is a straightforward and clear case and there is no reason why a judge should not just go ahead and tell the claimant that “you won, I am going to approve your case.” However, I do know that new judges need some time in order reach a comfort level in dealing with such cases and this new judge did see the bigger picture, which is very much appreciated, even if she made us go through the exercise of putting on proof.