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]