Multi-level Decompression and Fusion, then Return to Work – this was a closed period case
Claimant: 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 a disability with an onset of May 1, 2006. At the time he stopped working as a maintenance technician in May, 2006, my client had already undergone 3 previous lumbar spine surgical procedures. Prior to the 4th surgery, the physician’s notes indicated that my client had severe low back pain radiating into his legs. The notes also described severe spinal stenosis, meaning that scar tissue and/or disc material was causing a narrowing in his spinal canal. The surgery performed was a decompression and a fusion of the vertebrae from L2-S1 (by contrast, most fusions involve one or perhaps two vertebrae). Following surgery, my client experienced a slow recovery. He was fitted with an external brace, which he found very uncomfortable. For over 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 for the household. Because he has returned to work and had been working for over 8 months, I felt that we would not be able to argue for on-going disability, but instead, we would need to argue for a closed period of disability – May 1, 2006 – May 30, 2008.
Hearing Strategy: I felt that the medical record was fairly clear that my client had a significant, surgical spinal problem that would support a claim for disability. His treating doctors documented the extent of his problem and his slow recovery.
Had my client not returned to work, I would have argued for on-going disability and most likely would have won, but we had to stick with the closed period argument as he had returned to work for over 8 months and was able to perform his job as a truck driver.
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 wanted to argue for disability as of 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 of May 1.
The other thing I needed 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 at the earliest. The problem – due to 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 and was not actually driving a truck until mid-June, and that he was only appearing at the work site for a few hours a day.
The judge in our case was a new judge who I did not know. 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 necessary (in my opinion) 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 elicited testimony 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 nto 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 noted that she had no questions for the vocational witness and she closed the hearing. 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: This case was a very strong case from the get-go. The claimant’s age (60 years) was a very good start. 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 recovery issues. A more experienced judge would have needed about 10 minutes to identify the issues involved and to elicit testimony on those points. I also think that in a clear cut case like this 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 recognize that new judges need to reach a comfort level in dealing with cases and this new judge did see the big picture, even if she made us go through the exercise of putting on proof.