Summary: 55 year old male on long term pain management following unsuccessful back surgery
Client profile: 55 year old male
Education: high school graduate, welding certificate, insurance and securities sales licenses
Past work: prior to the applicable 15 year work lookback period, my client worked as a welder. Within the lookback, he had worked as a financial consultant, selling insurance and annuities.
Claim background: my client filed for benefits in 2013, alleging an onset date in 2005, when he last worked selling insurance and annuities. His date last insured for Title II benefits was in June, 2010, meaning that in order to win, we had to prove that his disability began on or before June 30, 2010.
Medical background: in 2001, my client underwent two procedures on his back called nucleoplasties. These are minimally invasive surgeries designed to treat herniated discs. Unfortunately these procedures were not successful in my client’s case and post surgery his pain level increased. My client later discovered that his surgeon had not been properly trained to perform these procedures (the surgeon was subsequently disciplined).
Because these procedures were performed out of state by a physician no longer in practice neither SSA nor my office was able to obtain the surgical records. The procedure and its aftermath were referred to in subsequent documents, however.
Following surgery, my client attempted to continue his work as a financial consultant in the Atlanta area but was unable to do so because of pain and medication side effects. From 2005 to the present, my client has been a patient at a chronic pain management clinic. He states that his condition has deteriorated somewhat but that his functionality has not changed significantly since 2005.
We did have pain management office notes from 2005 to the present as well as surgical consult notes from 2008 – so there was evidence prior to the 2010 date last insured.
Factors in our favor:
- the judge in our case is reasonable and tends to approve a higher than average number of cases
- my client has been consistent and compliant with recommended medical care
- my client has a long and continuous work history
Factors not in our favor:
- we had a remote date last insured – judges are often hesitant to find that a claimant was disabled years ago while the medical records showed ongoing treatment, they did not document much in the way of objective findings (i.e. muscle atrophy, balance issues, etc.)
My strategy: I felt that the extensive and consistent pain management clinic treatment records appropriately documented that my client had unsuccessful back surgery and did experience a significant level of pain. My plan was to have my client testify about his level of pain and loss of capacity and to argue that my client’s testimony was consistent with the evidence and should be accepted as an accurate representation of his functioning.
Hearing Report: the hearing was scheduled for 9am at one of the Atlanta area hearing offices in early 2015. We were the judge’s first hearing that day. I have appeared before this judge several times and we have established a friendly rapport.
This judge does not stick to a set hearing procedure – his hearings involve a lot of back and forth discussion with the claimant, counsel and the vocational witness.
The judge quickly made me aware of his concerns: this hearing was being held in 2015, and we had to prove that my client’s level of pain and limitation of function was disabling in 2010, 5 years ago. Further, while the medical record did show ongoing medication management for pain, there was not much in the way of clinical evaluation to objectively show loss of function.
The judge also noted that the pain management physician diagnosed “chronic opioid dependence, which may or may not suggest abuse.
My sense was that the judge felt that this was a borderline case – on one hand, this claimant clearly did not benefit from surgery and was constrained to existing with the help of pain medications. On the other hand, was there evidence to suggest that he could not reliably function in a simple, entry-level, “warm body” job with a sit-stand option?
Interestingly, most of the conversation in the hearing was between the judge and myself. Both the judge and I did question my client about his capacity to sit, stand, lift and concentrate but I got the sense that the judge was more concerned about the medical record than the claimant’s testimony.
After about 45 minutes of this back and forth the judge announced that he was prepared to find that my client’s level of pain, coupled with interference with attention, concentration, persistence and pace would preclude even entry level, unskilled work.
I also think that my client benefited from my case preparation. I was able to point to specific pages within the exhibits to identify MRI reports and what limited commentary there was on functional capacity. The judge indicated to me after the hearing that the day before he had presided over two cases where the attorney was not prepared and he appreciated the fact that I was prepared.
I had to work hard for this case but my client is deserving and will be awarded benefits.
Conclusions: this is a good example of a case that could have been approved or denied. Clearly my client has a medical problem – but in the absence of any capacity opinions from a treating doctor, would the judge accept that my client’s capacity to function would not allow for a simple job? Fortunately, in this case we were able to show, somewhat by implication, that my client’s medical issues did rise to the level of “disabling.”