Case Study 3
Background: Claimant with Demyelinating Condition Equivalent to MS
In this case, the claimant was a 23-year-old man who had previously worked as a city sanitation driver, a fast food worker, and a factory worker (in a warehouse). Along with his unskilled work background, the claimant had a limited education; he had not finished the 10th grade.
Although the claimant’s doctors were unsure of the exact diagnosis, it was agreed that he had a “demyelinating condition” similar to Multiple Sclerosis. Based on limitations caused by his illness, the claimant applied for benefits and was seen before an Administrative Law Judge at a hearing held in December 2008.
Hearing Information
This hearing was scheduled before a reasonable, experienced judge. The main issue in my mind was the claimant’s age (he was only 23) – which is considered very young for a disability claimant.
When I reviewed his case prior to the hearing, there was only one issue – the treating physician had finished a very helpful functional capacity form showing that my client could not perform work, but the doctor was not entirely clear on the diagnosis. The physician stated that my client has a “demyelinating condition” which is like MS (Multiple Sclerosis) – but some of the lab reports were inconsistent with a clear MS diagnosis.
I believed that the exact diagnosis was not as important as the resulting functional limitations and the likelihood of his condition being permanent. I decided to write a pre-hearing brief for the judge so as to neatly summarize the medical and vocational matters at stake.
Text of Jonathan’s Pre-Hearing Brief
The following is a shortened version of the pre-hearing brief I submitted in this case:
Judge _____
Office of Disability Adjudication and Review
245 Peachtree Center Ave.
Suite 500, Marquis I
Atlanta, GA 30303
RE:
Claimant: John Doe
SS#: xxx-xx-xxxx
Date of Hearing: December 16, 2008
Dear Judge _____:
As the file will reflect, I represent claimant Doe with regard to his claim for SSDI benefits. A hearing is scheduled before you on Tuesday, December 16, 2008 at 9:45 AM. Please allow this letter to serve as my request for an on-the-record decision, or, in alternative a pre-hearing brief in this case.
My client is a 23-year-old man with a 10th grade education. Despite his youth, Mr. Kilgore has a solid work history, including:
- 1. Street Department driver for the City of _____, Georgia (3/2007-5/3/2007)
- 2. Busboy/Waiter/Cook for ABC Restaurant (6/2001-2/2006)
- 3. Bagger/warehouse worker for XYZ Company (8/06-10/06)
- 4. Domino’s Pizza delivery person (4/05-6/05)
- 5. Groundsman and driver for DEF Company (9/05-1/06)
- 6. McDonalds Restaurant cook (2/05-8/05)
Mr. Doe dropped out of school in the 10th grade to go to work to support his mother and family. He re-enrolled the next year and again began work in the 10th grade but had to drop out again to go to work.
The claimant can read and write, but, as you will note from the June 2, 2008 neuropsychological evaluation performed by Dr. R.G., Mr. Doe has a fairly significant cognitive impairment, including a Full Scale IQ of 84, severely impaired fine visual motor coordination, and a highly variable attentional deployment that extended from the high average to severely impaired range.
Mr. Doe is married and is the father of a small child. He is wheelchair bound and can stand and walk for very short periods of time. For instance, he can get out of his wheelchair with support to get into a bathroom.
Mr. Doe’s impairment derives from a demyelination process that appears to be a form of multiple sclerosis. Treating physician B.T., M.D., medical director of the Multiple Sclerosis Institute at the XYZ Hospital in Atlanta suggests in his office notes that the claimant has possible MS.
According to neuropsychologist R.G.’s notes, the claimant had an episode of meningitis at age 10. Following his recovery, the claimant experienced sporadic headaches but was able to work extensively until May 3, 2007, when he woke up with a severe headache pain, numbness throughout his body, and right-sided numbness.
The claimant was referred to Dr. B.T. for treatment, and has been treating at the XYZ Hospital Multiple Sclerosis Center ever since. The symptoms that the claimant experiences include:
- leg pain, especially on the right side
- leg weakness that confines the claimant to a wheelchair
- right side upper extremity pain and numbness extending into the hand
- tremors
- dizziness
- fatigue
- headaches
- incontinence
- short term memory loss
- cognitive decline
- vision and hearing loss
- excessive sleeping
At my request, Dr. B.T. completed a functional capacity evaluation of the claimant, a copy of which is enclosed. As Dr. B.T. notes, the claimant would more than likely experience excessive absences from work and would not be able to tolerate even low stress jobs. The claimant contends that this functional capacity evaluation represents an accurate representation of his current functioning.
Because the claimant is incapable of walking without help and he uses a wheelchair most of the time, he would be excluded because of physical symptoms from any type of employment other than sedentary work. Because his MS has left the claimant weak (especially on the right side), fatigued, partially incontinent, and suffering from depression and cognitive decline, he would not be a reliable worker at any job within the sedentary job base.
I therefore ask, your Honor, to find claimant disabled. Thank you for your consideration of this request.
VERY TRULY YOURS,
Jonathan C. Ginsberg
GINSBERG LAW OFFICES, P.C.
Hearing Strategy
I entered the hearing room with my client and his wife.
My client is obviously wheelchair bound and had quite a difficult time getting through the narrow hearing room door. Usually, witnesses (his wife) would be asked to wait outside, but he judge looked at me and said that my client’s wife could stay as long as “we won’t be here too long.”
The Judge asked for an opening statement and I summarized what I had written in my pre-hearing brief. It turns out that the judge never received my brief even though I had submitted it three (3) separate times. This of course is not the judge’s fault – but it does point out the importance of always having additional copies of documents in case they have to be re-submitted.
After listening to my opening statement the judge turned to the claimant and asked him a series of questions about being able to stand and to use his right (dominant) arm. The judge then turned to our vocational witness and asked her for a synopsis and description of the claimant’s past work. He asked the following hypothetical question:
Q: Let’s assume we have an individual who is the same age as the claimant with the same education and work experience. Then let’s say he requires a wheelchair to move around and he cannot walk or stand more than a few seconds. Additionally, he has absolutely no ability to use his right arm and hand in any coordinated way and he cannot use it to grasp, grip, push or pull.
Would this person be able to return to his previous job?
A: No
Q: Are there any other jobs he could do?
A: No
Q: Mr. Ginsberg, do you have any further questions?
A: No.
The judge stated (on the record) that he would be deciding in favor of the claimant. The judge read what is called a “bench decision” into the record in which he stated his reasons for finding in favor of the claimant.
Summary
Even though my client was much younger than the average claimant, his medical condition was very serious and we had complete support from a reliable treating physician. We were therefore able to secure benefits for the claimant based on his MS-like demyelinating condition.
