Summary: 41 year old male who developed fibromyalgia following a serious, but routine, back surgery.
Client profile: 41 year old male
Education: 10th grade education; basic reading and writing skills
Past work: diesel mechanic, cable installer, backhoe driver
Claim background: my client filed for benefits in July, 2010 alleging disability beginning in August, 2008, the date he fell off a truck and hurt his back. A hearing was held in this case in April, 2012.
Medical background: my client fell off an 18 wheeler truck he was working on and hurt his back. In October, 2008 he underwent an interbody decompression and fusion at L4/5 with placement of instrumentation. Following surgery he developed chronic and intractable pain that has been diagnosed as fibromyalgia. Because this was a workers’ compensation injury, the quality of my client’s medical care and surgical follow-up was below average.
Factors in our favor:
- my client has a long and consistent work history
- the record describes a serious back injury
- we have a very supportive functional capacity form from his current treating physician
Factors not in our favor:
- my client is a younger individual
- fibromyalgia is a rare diagnosis for a male
- following surgery my client did not see much treatment other than pain medication management
- the treating doctor completing the functional capacity form is an internist, not a rheumatologist or a pain management physician
My strategy: I wanted to portray my client as a hardworking man who would offer credible testimony about his level of pain and exertional impairment.
Hearing Report: the hearing was a video hearing, heard by a judge in a remote location. My client and I entered the hearing room and sat down. My client uses a cane to walk and the judge made note of that fact for the record.
After swearing in the claimant and the vocational witness the judge accepted the medical evidence into the record and asked the claimant a few background questions. She specifically asked if his cane had been prescribed by a doctor – he answered that he had the cane prior to his accident and that his doctors encouraged him to use it if he felt unstable on his feet.
The judge then asked me for my opening statement, which I provided. She then directed me to question my client. I began my direct examination by asking my client to describe his work accident. We then discussed his surgery and follow-up treatment. He testified that after surgery he expected that his pain level and mobility would improve but they did not. My client testified that he experienced significant pain in his joints and on his skin (myofascial pain). He also described balance issues. I asked my client about his capacity to sit, stand, walk, lift and carry – all of which were very limited and subject to periods of rest.
My client testified that until he began treating with his family doctor in early 2011 his surgeon had only treated him with narcotic pain medications for pain and that he felt “loopy” from these medications and occasionally experienced hallucinations.
The judge then asked a few follow up questions, then turned to the vocational witness and asked him to identify the claimant’s past work, which he did as:
- diesel mechanic – heavy, skilled
- dump truck driver – medium, unskilled
- cable installer – medium, skilled
- power shovel operator – medium, semi-skilled
The judge then asked the following hypothetical questions:
1. Assume an individual who is the same age as the claimant with the same education and work background. Assume further that this person is limited to the same level as the State Agency functional capacity form at Exhibit 10F.
Q: Could such a person return to past work?
A: No
Q: Could such a person return to any other work?
A: Yes – he could be a ticket taker, a cashier II or a ticket seller, among other light, unskilled jobs.
2. Assume I accept the treating doctor’s functional capacity form, which identifies multiple reliability and pain limitations.
Q: Could such a person return to the claimant’s past work or any other work?
A: No
3. Assume I find the claimant credible, could he perform any type of work?
A: No.
The judge then adjourned the hearing
Conclusions: this case will turn on whether the judge finds the claimant believable. In my view, the claimant testified credibly and there is a very supportive functional capacity evaluation from a treating doctor.