July 25, 2014

Stong Case Undermined by Simple Problem (Maybe)

Weakness Word on Breaking Weak Chain LinksI tried an interesting case this week that illustrates the importance of presenting a complete case to your judge.

My case involved a man in his early thirties with a significant hip problem.  He had been born with a bone deformity in his hip that was surgically repaired during his childhood and he was able to work a variety of physically demanding jobs during his 20′s.

By age 30, however, he was experiencing severe hip pain such that he could not drive a truck or perform his job.  He met with a surgeon and underwent hip replacement surgery.  I should note that surgeons rarely recommend hip replacement surgery for individuals younger than 50 because artificial hips rarely last more than 15 years and current medical technology does not allow for more than two hip replacement over one’s lifetime.

My client’s hip replacement surgery was not successful in restoring function and testing showed that the expected bone growth did no occur.  About 18 months after the first surgery, my client underwent a 2nd surgery to fix the problems from the first.

This second surgery resulted in some improvement in function initially but within a year of the second surgery my client was experiencing extreme pain and limitation of movement.  During the hearing he testified that he could sit for no more than 20 minutes and that he spent most of his time reclining on a couch or in bed.

My client also sought treatment for depression as he cannot support his family, play with his children or even perform basic housework.  My client and his wife lost their house and are now living with their parents.

As part of my case presentation I obtained functional capacity forms from both the surgeon who performed the second surgery and the psychiatrist who was treating my client for depression.  These functional capacity forms identified a multitude of work limitations including:

  • marked limitations in attention and concentration
  • likely inability to maintain a work schedule
  • poor capacity to interact with co-workers and the general public
  • severe level of pain
  • need to take multiple unscheduled breaks
  • likelihood that he would miss more than 3 days of work per month

In sum, this was a strong case in that we had uncontroverted objective evidence of a significant medical issue, support from multiple treating and examining physicians and a strong work history.  My client is young but otherwise this looks like a good case.

What is missing?

Despite all the positives in this case there was one glaring problem.  Except for a very brief period after his first surgery, my client has refused to take any pain medications – neither prescription or over the counter.

I could tell that the judge found this omission troubling.  At the very least I suspect that the judge was asking himself if my client’s pain could have been reduced to a manageable level with some long term pain relief.

I’m not sure what the judge will do in this case, but I think that this case would have been much stronger if my client was taking pain medications.  My client testified that he did not take the pain medications because he did not want to become addicted to them – which is reasonable – but he should have included in this explanation complaints about how the medications made him feel or about side effects.  Instead, I don’t think that the judge was convinced that my client was taking reasonable steps to preserve his employability.

It will be interesting to see if the judge turns down a case that has all the hallmarks of a winner because of this one factor.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. TJ Austin says:

    These are the kinds of stories where I think ALJ’s are disconnected from the real world; they must have forgotten what it’s like to be a human being in constant pain. Pain is a very strong demon. I understand the ALJ’s concern about the “what ifs” if the claimant was taking pain medication. I think the ALJ’s don’t understand that intense and chronic pain isn’t simply relieved by a pill. For myself and those I know who are in constant pain, resorting to a daily pill just for the sake of being able to tolerate the hours does not and will probably never equate to being able to work 8 hours a day/ 5 days a week. I think these ALJ’s believe a pill can take a person from not being able to function to being able to do gymnastics. There is a huge gray area in how pain medication will affect people, not to mention the after effects pain medication can and usually brings. Sometimes the side effects are worse then the parent condition, and I don’t think ALJ’s are open to these kinds of realities. I can’t imagine an ALJ would deny a claim because of a claimant not wanting to take pain medication when it’s more than obvious that pain medication will not overcome a hip replacement and all of its effects. I believe ALJ’s are just looking for that needle in a haystack so they can blow that issue out of the water for the sake of a denial (which from what I’ve read are mostly remanded because of the idiocy of those decisions). Talk about the backlog – someone needs to look at the amount of improper denials versus worrying about those people who are trying to skirt the system.

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