I tried a case this morning, representing a 50 year old man with "failed back syndrome."  My client was injured when he fell 20 feet off a ladder when he was installing gutters.  He landed on his feet on a concrete slab, but the associated shock has caused extensive damage to his back.  Since August of 2002, when he had the accident, my client has undergone three back surgeries, has tried a spinal stimulator, has tried epidural steriod injections, lumbar facet blocks and radio frequency ablation to deaden the nerves in his back.   He has been on continuous care by a pain management physician since 2003, and has been prescribed everything from methodone to morphine. 

Despite the best efforts of his doctor, he remains in almost constant pain and could barely sit for 10 minutes at the hearing before needing to stand up.

My client initially applied for benefits in April 2003 and his hearing was held on December 14, 2006.  Although I thought that the medical record was compelling, I did not have any completed functional capacity forms from either his surgeon or his pain physician.  Neither of these doctors would fill out a form and wanted to refer my client for a $1,000+ functional capacity evaluation at another facility.

So, even though I felt that the record clearly suggested that my client was disabled, I was concerned going in because I did not have any functional capacity forms.  In addition, our judge is one who usually feels more comfortable with a firm vocational opinion from a treating physician.

The judge in our case asks very little of the claimants at the outset of the case, so I was responsible for eliciting all testimony – starting with swearing the claimant to tell the truth.  I next went through my client’s job history, then we discussed each of his three operations.  I then asked him to describe specific activity limitations – how far could he walk, how long could he sit, how much could he lift.  We spoke about his pain and I asked him to describe his pain on a scale of 1-10.

After about 45 minutes of this, the judge had obviously heard enough.  He turned to the vocational witness and posed a hypothetical question, the last part of which provided that the hypothetical person w ould likely miss 4 or more days a month.  The vocational expert responded that this level of reliability problems would make it impossible for a hypothetical person to return to past work or to sustain any other work at any exertional or skill level.

I resisted the temptation to ask any questions since I knew that my case would be approved.

This is a good example of a case where the claimant’s very credible testimony, a long and stable work history and medical records that are consistent with the testimony resulted in a win, even though we did not have any functional capacity form filled out by a treating doctor.

[tags] failed back syndrome, social security disability, north atlanta office of disability and review, favorable decision [/tags]

Paralegal Judy Bledsoe of my office recently received a call from a client of mine who had been approved for disability benefits, but was having Medicare problems.  My client was a longtime employee of a local phone company and continued to receive health insurance coverage through a company plan even after she stopped working because of her disability.

When my client was approved for SSDI, she also became eligible for Medicare.  SSDI claimants become eligible for Medicare 25 months following the onset of their disability.

Here, my client’s eligibility for Medicare started in approximately September, 2004.  However, in order to get the Medicare coverage, my client had to pay the Medicare premium from September, 2004 through the present.  She could have paid this premium from her lump sum past due benefit award. Her future Medicare premium will be deducted from her monthly Social Security payment.

Because my client’s medical bills had been paid by her health insurance company, she declined to pay for the past due Medicare premium.  Recently, however, the health insurer discovered that my client had become eligible for Medicare, they advised my client that they intended to contact all of the doctors and hospitals who they had paid to ask for their money back since Medicare was the primary insurer.  Further, the health insurer advised my client that if she was unable to figure out a way to "undo" her rejection of Medicare coverage from September, 2004 to the present, she would end up responsible for all the medical bills.

My client has used up her lump sum and does not have the approximately $3,000 that would be needed to pay the past due Medicare premium.  If the health insurer recovers its payout for medical services, my client will owe over $10,000.  I am going to contact Medicare to see (1) if my client still has the option of paying her Medicare premium for the past due months and (2) would Medicare consider allowing her to pay her premium at $50 to $75 per month, automatically deducted from her monthly Social Security benefit payment.

The lesson learned from this situation – if you have a health insurance policy in place and you subsequently become eligible for Medicare, Medicare appears to be the primary payor.   Be very careful, therefore, about waiving your right to Medicare coverage for pre-existing months.

[tags] Medicare, medicare and private health insurance, past due benefits Social Security Disability [/tags]

Last week, I tried a back pain case in a video hearing in Rome, Georgia.  The judge was in a different State, while the claimant, the vocational expert and I were in Court together.

Normally,  I am not a big fan of video hearings because I think that the claimant loses the one to one connection with the  judge that  occurs in an in-person hearing.   This judge, from the Chattanooga hearing office, was very prepared and, in my view, took a very reasonable approach to the hearing.

My client was a 56 year old female with chronic neck and back problems.  There was not a lot of medical evidence in the file as my client could not afford on-going treatment and she could not afford surgery.  She had treated for many years with a chiropractor, but, under Social Security rules, a chiropractor’s records are not given much weight.

Basically the record we had included a number of office records from a family physician and a consultative evaluation by an orthopedist.  The records suggested that my client had very bad degeneration in the cervical spine and most likely needed surgery.

My client  testified that she was in almost constant pain and that most of her time was spent trying to be comfortable.

In 2003, my client stopped working her last  "regular" job but she shortly thereafter accepted a part time position in a retail store.  My client worked there part time until September, 2005 when she had to stop because of the pain.  She testified that she worked between 8 and 30 hours a week and that she worked "as many hours as they would give me."  Interestingly, her earnings in most of those months were below "SGA" (substantial gainful activity).

Earnings above SGA are presumed to signify that a claimant is engaged in work for Social Security purposes.

The judge felt that even though her earnings were below SGA, the only reason she was not earning more was a lack of available hours.  Had more hours been available to her, she would have and could have performed those tasks.  The judge therefore asked us to amend our onset date the last day she worked at the retail store.  I asked the judge for a short recess and after speaking with my client, we agreed to amend the onset date.

I think that this case is relevant for a couple of reasons.  First, we had a judge who was able to look beyond the absence of a functional capacity form or even a clear statement of limitations from a treating orthopedist.  He was willing to listen to the claimant’s testimony and deduced from the record that the claimant’s neck pain was severe and debilitating.

Second, we have another example of how part time work muddies the water.  If you work part time, judges will often assume that a lack of hours rather than a lack of capacity to work kept your earnings down.

Some judges would have denied this case because of the absence of clear objective evidence.  Fortunately, this judge was willing and able to use his insight and common sense.  This is as it should be.  The word "judge" is both a noun and a verb.  Judges who turn a case down because there is no MRI report or orthopedist opinion are not doing their job.  Often the reason there are no objective records has to do with the claimant’s lack of money or health insurance.  A poor claimant is no less disabled than a claimant with good insurance.  I personally think that a judge needs to learn how to read between the lines, listen to the claimant and consider the entire picture.

We had such a judge in this case and I think he engaged in a proper analysis of this case.  What do you think?

[tags] SGA, substantial gainful, Chattanooga OHA, social security disability claimant [/tags]