Case Study 1

Background Information

This case involved the claim of a 49-year-old female with a high school education and some college work.  She was an Army veteran, and for the past 20 years, she worked for the U.S. Postal Service – first as a letter carrier, then later as a distribution clerk.

The hearing in this case was held in March 2009.  My client alleged an onset date in September 2007, which was her last date of physically appearing at her work site.  As is typically the case with long term employees of companies or governmental agencies, my client’s earnings record showed income after September 2007, but I explained to the judge that this income was accrued vacation time or deferred compensation.

My client had originally been diagnosed with MS back in 2004, but she carried on working even as her symptoms got worse.  Finally, in September 2007, following a flare-up, my client and her doctors decided that it was time for her to stop working.

My Pre-Hearing Assessment of the Case

After meeting with my client in a pre-hearing conference at my office, I felt that this was a strong case for the following reasons:

• my client was  a very credible witness.  She is a very likable and sincere person and I felt that her testimony would come across as believable
• we had strong support from treating physicians
• my client had a long, consistent work history
• my client’s underlying medical condition had been conclusively diagnosed

I did not feel that there was much working against us, although I did note that:

• MS is a condition that is subject to flare-ups and remissions.  Sometimes when the condition is in remission, an MS patient’s functionality can be good

Prior to the hearing, I submitted a pre-hearing brief to the judge, a copy of which is reproduced below.

Knowing Our Judge

The judge in our case has a very unusual style.  He was assigned to the downtown Atlanta hearing office last year and he hears more cases than any other judge there.  Unlike the other judges, this judge rarely uses vocational witnesses.  He reviews the claims file and he makes a fast evaluation.  Frequently his hearings last only a few minutes.   Despite what appears to be snap judgments, my experience with this judge has been that he is usually accurate in his case assessments.   I find that he expects attorneys that appear before him to be prepared and he has always been courteous and professional with me.  I have also found that this judge is often receptive to a good pre-hearing brief and/or strong opening statement that clarifies the issue.

A Brief (but Successful) Hearing

When the case was called, the judge asked me to make an opening statement.  I advised him that I had prepared a pre-hearing brief.  He took a few minutes to read it, then he announced that based on the evidence and my argument he would be approving the case.   My client and I were in the hearing room for less than 15 minutes and she did not have to say anything!

Text of Jonathan’s Pre-Hearing Brief

The following is an edited version of the pre-hearing brief I submitted in this case (I changed the names and several of the dates to protect my client’s privacy):

Judge _______
Office of Disability Adjudication and Review
245 Peachtree Center Ave.
Suite 500, Marquis I
Atlanta, GA 30303

RE:
Claimant: Jane Doe
SS#:  xxx-xx-xxxx
Date of Hearing: March 25, 2009

Dear Judge ______:

I represent claimant Jane Doe with regard to her claim for disability benefits.  A hearing in this case is scheduled for Wednesday, March 25, 2009 at 8:30 AM.   Please allow this letter to represent my pre-hearing brief in this case and my request for an on-the-record decision.

The Claimant, Ms. Doe, is a 49-year-old female (d/o/b 9-07-1959) with a high school education and some graduate classes.  She is a US Army veteran and from February 1987 through September 24, 2007, she worked first as a letter carrier, then as a distribution clerk for the US Postal Service.

The claimant completed her application for Title II benefits on October 3, 2007, alleging an onset date of September 21, 2007.  The claimant last appeared at the USPS work site in September 2007.  There may be earnings affiliated with her Social Security number after that date, but said earnings represent accumulated leave or sick pay or retirement benefits.

In addition, the claimant’s claim for disability relates to physical and cognitive limitations arising from multiple sclerosis.  The claimant was first diagnosed with multiple sclerosis in April 2004 by Dr. Seiden.  At first, her symptoms were considered mild, consisting of occasional tremors and rigidity.  She was eventually prescribed Avonex then she continued to work at the postal service as a distribution clerk.

During March of 2007, the claimant experienced a flare-up described as right-sided facial numbness and dysthesias (numbness and tingling throughout her body).  The claimant also reported extremely painful headaches.  Dr. Linda Safer of Atlanta Neurology took over responsibility for the claimant’s care, and physicians at Atlanta Neurology have cared for the claimant ever since.

The medical record contains brain MRI reports documenting the presence of lesions consistent with MS (multiple sclerosis).  The record also documents an increasing number of MS flare-ups that have slowly reduced the claimant’s ability to walk or maintain balance without help.  The claimant also experiences hand tremors, rigidity, numbness, insomnia and headaches regularly.

In addition, the claimant experienced cognitive decline and mood swings – which are also symptoms of her multiple sclerosis.  An office note from Dr. Safer dated November 16, 2007 describes one of these episodes as involving balancing issues, right hand tremors, difficulty with reading comprehension and blurred vision.

In addition to the claimant’s neuromuscular condition, she claimant has also been treated for major depression.   The claimant’s Veterans Administration psychologist Janet Williams stated that the claimant’s depression has been made worse by her multiple sclerosis diagnosis and that as a “result of her physical and psychological health problems, she is not capable of working.”

Dr. Williams indicated in a U.S. Department of Labor OWCP form that the claimant has not been able to work since September 24, 2007.  Further documentation produced by Dr. Williams suggested that the claimant’s major depression disability is permanent and constant.

Today, the claimant experiences poor muscle control in her lower extremities, right upper extremity tremors, memory loss, four to five hour long migraine headaches almost daily (3 to 4 days per week), cognitive decline, poor gross and fine motor coordination, crying spells, low energy, irritability, and sluggishness during activities.

As you probably already know, MS (multiple sclerosis) is considered to a degenerative condition.  The claimant has a consistent work history of more than 20 years with the same employer and her decision to stop working in September 2007 was made when she discovered that her physical and mental condition no longer allowed her to engage competitively on the job.  In this case, please consider the claimant’s request for an on the record decision based on the medical record in this file.

VERY TRULY YOURS,

Jonathan C. Ginsberg

GINSBERG LAW OFFICES, P.C.