Although I generally write about successful cases, I think that you can also learn from cases that don’t go so well. I tried a case recently that turned out to be snakebit. Just about everything that could have gone wrong did go wrong and this is one of the few cases where a judge announced in open court that he did not find my client believeable or credible at all.
Interestingly, my client does have significant medical problems and a long and solid work history of over 20 years with the same employer. He is also well educated with a college degree and he earned a very good living in the accounting field. After he stopped working, he made at least three attempts to return to work but was unable to do so because of significant pain. He has a clear diagnosis of an orthopedic problem and his treating doctor is recommending multiple joint replacements. All in all, this gentleman meets the profile of what I would consider to be a viable case. What, then, went wrong?
Firstly, my client did not present himself as a person who was searching for relief. He last worked in 2005 and thereafter he had only two visits to an orthopedic surgeon. Although his doctor stated during both of these visits that surgery was needed, my client did not pursue treatment. Instead, he stayed at home and sought to control his pain with over the counter medications.
I think that the judge questioned my client’s allegations of pain – there was no attempt to pursue physical therapy, there was no course of pain management, and my client was very vague about what he did during the many months that he was at home. I believe that the judge saw my client as a man who sat at home watching TV, making no effort to explore options that might improve his condition.
When the question was asked why he had not had his surgery, my client responded that he was “waiting for the result of this hearing” before having surgery. This was clearly not a good answer. The implication of this answer is that my client could have had the surgery and pursued a recovery but instead, he decided to wait at home and collect Social Security. This demonstrates the wrong attitude.
Although I tried to rehabilitate my client by getting him to testify about his fear of surgery and possible complications, the judge remained focused on my client’s linkage of his disability hearing to his surgical options. Social Security judges cannot hold it against a claimant for refusing to undergo invasive surgery but a judge can hold it against a claimant whose decision not to pursue surgery was motivated by a desire to collect from SSA.
My client tried to raise the issue of money – that surgery was expensive, but the judge shot that down by pointing out that my client had very good insurance coverage through his wife and that his out of pocket cost for surgery was nominal.
The judge did not even raise an issue that I saw in the record – namely that my client smokes 3 packs of cigarettes a day, which means that (1) he spends money on a harmful habit that could otherwise be applied to his out of pocket medical costs; (2) he lowers his chances at a successful surgical outcome as smokers frequently experience longer recovery times and less favorable results; and (3) there was no suggestion in the record that my client is trying to stop smoking.
The judge’s disgust with my client was very evident, and the judge did not even go through the exercise of asking any questions of the vocational witness. I expect that the decision will be an unfavorable decision based on a finding that my client lacked credibility.
What could my client have done differently?
First and foremost, he should have made some good faith effort to seek relief from his symptoms. If he was not ready for surgery – and most judges understand if you hold off on major surgery that does not guarantee results – he should have sought pain management treatment or physical therapy to strengthen himself.
My client could have used his condition as a diabetic and as a smoker to improve his chances. Diabetics often have trouble recovering from surgery and he could have referenced his diabetes as a reason for not wanting surgery. Had there been evidence that he was trying to stop smoking he could have referenced his difficulty in quitting despite a sincere effort as another reason to delay surgery.
Finally, my client should have presented himself as a person who was applying for disability because he was not able to work despite a true desire to support himself and his family. Workers do not leave high paying jobs with pensions and benefits to sit at home and collect Social Security. He should have made it clear that Social Security was his last resort and that he would return to work immediately if his condition warrented.
Alas, even cases with potential do not go as planned. I think that my client is an example of a person who very well might be unable to work, but he presented himself so unconvincingly that he will not receive benefits.