Justia Lawyer Rating
Massachussets Bar Association
Maine state Bar

August and September, 2013: Different Routes to Success

The last 2 months has seen a number of deserving clients receive favorable decisions from their respective hearing offices. The four cases that follow, all of which resulted in a happy client who is now in a much better place financially following their favorable decision, are good examples of the different routes one's Social Security case may take during the hearing process.

Doug's case involves that of a 44 year old gentleman with a lengthy and consistent work history who went in for what was supposed to be a routine hernia surgery that resulted in a horrible, unintended result. Unfortunately, staples used during the hernia procedure resulted in nerve damage to his inguinal nerve (which nerve runs along the individual's groin region, and which can cause excruciating pain if the nerve is damaged). Doug, who had been working 2 jobs at the time of this procedure (as a truck driver and as a self-employed construction contractor), attempted to return to work following treatment efforts to address his ongoing pain by way of both nerve block injections and nerve decompression surgery. Given his strong work ethic and his family's financial circumstances, Doug didn't want to sit back and wait for a disability check: he attempted to continue with some construction projects with the help of his son. He remained unable to return to work as a commercial truck driver given his difficulties and was forced to discontinue this line of work. Unfortunately, given the extent of his ongoing problems (with the major allegation being pain when he would sit or stand for any extended period of time, along with the need to lie down frequently throughout the day), and given his efforts to continue working, he was denied benefits. The Social Security Administration was not convinced that his efforts to return to work didn't evidence either gainful activity or at least the ability to earn gainful wages (defined as the ability to earn simply $1040.00 per month on a regular basis, working any job for which he's reasonably suited by age, education or experience).

One might draw the conclusion that attempting to return to work actually hurt Douglas's claim. However, in my opinion, it turned out to be quite the opposite. Rather, the attempt to return to work showed Douglas's intention to do everything possible to continue working if he could, rather than simply run to Social Security for a check (and while this approach causes the Social Security Administration to look kindly on the claimant who attempts to return to work, the question then becomes whether the individual, assuming they are not earning what is deemed to be substantial gainful wages (SGA) in their chosen field, could possibly work an easier job making SGA level earnings which is defined as the ability to earn $1040.00 per month).

Ultimately, an argument brief prior to hearing (requesting that he be provided with a fully favorable decision prior to the need for hearing) was not successful as it remained unclear the extent to which Doug's attempts to work constituted gainful activity. The Administrative Law Judge (ALJ) needed to hear from Doug how he was struggling at the job site, barely earning an income, and receiving assistance from his son in this process. Indeed, the ALJ was convinced at hearing that despite Doug's attempts at treatment (which included a total of 3 corrective surgeries, a multitude of nerve block injections along with pain medication) he remained significantly limited in his ability to persist at tasks during the day. Doug's attempts at returning to work made him look like a star before the presiding judge: he came across as someone who was coming to the Social Security Administration kicking and screaming, rather than running. Because of this, Doug's complaints of pain and functional limitations rang true to the presiding ALJ (who was happy to award benefits to this unfortunate gentleman).

Monica's claim involved that of a fifty (50) year old woman, who sustained a serious knee injury while working as an elder care attendant (a job she had performed for many years). It was determined that Monica had sustained a medial meniscus tear which required surgical intervention. Following surgery, she required a period of physical therapy along with additional cortisone injection given the symptoms she was continuing to experience. Monica did attempt to return to work for a period of months on a light duty capacity, once again working with elderly patients, but this only proved to worsen her condition. She had to discontinue working after a short period of time. It became apparent that Monica did not have a good result from the surgery, and the doctors were calling for a knee replacement procedure. Following the knee replacement, additional concern developed over the fact that she might be suffering from an infection where the hardware was located. She continued to suffer from swelling, pain and loss of function of her right leg and this made it impossible for her to become sufficiently ambulatory to consider a return to work. Unfortunately, the Social Security Administration was of the mindset that she could return to a sit down job (utterly ignoring her treating surgeon's opinions on this issue). While Monica continued to wait for an answer as to what could be done for her continuing knee problems (with fortunately a very understanding and supportive family and landlord), the Social Security Administration continued to deny her claim, finding instead that she could work a sit down job. However, Monica had a number of barriers to working a sit down job, including but not limited to the fact that she could not have shown up daily to work given the ongoing pain and discomfort she was experiencing (which was hindering her ability to sleep at night), her inability to sit for lengths of time (without being able to get up and move around, and without the ability to elevate her leg for lengths of time), her inability to stand or walk for any length of time and her inability to get up and down from a seated position without great difficulty.

Ultimately, Monica was offered a partially favorable decision based on the fact that the presiding ALJ, in assuming the facts of the lower level decisions that she would be limited to sit down work, found that as of 6 months prior to her 50th birthday she would meet one of Social Security's grid rules. Based on her age, education and past work experience, and a determination by the ALJ that she would be limited to at the very least sedentary work, he was willing to assume without the need for hearing that she would meet a grid rule.

Monica, at my suggestion, did not accept the partially favorable decision. She opted to go to hearing given her firm belief that there was simply no way she could have returned to sit down work at any point in time since she went out of work. Moreover, Monica's surgeon had been able to assure himself that her knee was safe enough from concerns of ongoing infection that she could undergo an additional knee replacement surgery. Thus, by the time Monica was scheduled for hearing, she had undergone her 4th knee surgery since 2009 and was just 6 weeks into her recovery. The presiding ALJ was convinced at this point in time that indeed Monica's circumstances had evidenced over time that her knee was simply not capable of allowing her to return to any manner of worksite since her initial knee injury (and found for her disabled accordingly). Thus, Monica was provided with a fully favorable decision at hearing. I am happy to say that Monica was provided with an additional 2 years of retroactive benefits based on her unwillingness to accept the ALJ's offer of a partially favorable decision. And with this fully favorable decision, I anticipate that Monica will be back on her feet soon (hopefully both literally and figuratively).

Roberta's case involved that of a 50 year old woman who was last working for a grocery chain as an assistant deli manager at which point she became disabled from working as a result of symptoms associated with Fibromyalgia. She had a past work history that included working as a home health aid and as a cook/waitress. Roberta's difficulties with Fibromyalgia-related symptoms had been longstanding: she had been able to work through these difficulties for a number of years before such time as the condition progressed to a point where she could no longer undertake the physical duties associated with her work as an assistant deli manager (or, in her mind, any other position for that matter). Roberta had been following up with both her primary care physician as well as with her rheumatologist, trying to find an answer to problems that consisted of constant pain (throughout her body), along with headaches, depression, anxiety and fatigue. As was the case with Monica, Roberta turned 50 during the course of her claim and the presiding ALJ came to the conclusion that in his opinion it was clear that she had been limited to at least sedentary work since the time she had turned 50. Given this fact, he offered Roberta what was a partially favorable decision going back since 6 months prior to turning 50 pursuant to the grid rule that applied to Roberta's circumstances. While Roberta did have a right to proceed to hearing should she wish, at which time she would have had to show she had remained disabled from working even a sedentary type of position, it did not make sense to pursue an earlier onset date given the fact that she would have needed to reimburse most of the money to a long-term disability insurance carrier. Thus, it made sense for Roberta to accept the partially favorable decision that was being offered by the judge. Knowing that she would not have to proceed to hearing, quickly served to lower Roberta's anxiety levels and has allowed her to rest more easily knowing that help is on the way.

Chester's case involves that of a 61 year old gentleman who ran his own auto mechanic shop for many years until such time as he suffered a work-related injury to his knees in January, 2012. Unfortunately, at the time of his initial determination, a clear diagnosis of his leg problems had not been made (and he was still awaiting additional testing and referral). Upon my involvement at the hearing level, MRI undertaken of his knee indicated a medial meniscus tear requiring arthroscopic surgery. Likewise, at the time of the prior agency determination, no treating physician had been kind enough to address a questionnaire indicating the severity of his medical problems nor the extent to which he remained physically unable to perform work activities. Fortunately, upon our involvement, Chester's surgeon was kind enough to address both a Physical RFC Questionnaire as well as a Listing 1.02/1.03 (indicating that in his opinion Chester met a medical listing of impairment and that his condition significantly limited his ability to undertake work activities). Given the extent of the new evidence provided, along with my argument brief, the presiding ALJ determined that a hearing would not be necessary. Given Chester's age, education, past work experience and functional limitations, the presiding ALJ was convinced that Chester had met a grid rule which would direct a finding of disabled since his alleged onset date. Thus, I'm happy to report that Chester has received a fully favorable decision and has been able to rest more easily knowing that he would not need to proceed to hearing.