Hi there, this is Jonathan Ginsberg and today I’d like to talk to you about how I approach a case where the primary impairment is back pain As you might expect Social Security judges see a lot of back pain cases its probably the most common physical ailment that Social Security judges are going to see and as such you really need to keep in mind that you’ve got to stand out a little bit because a lot of people come in with osteoarthritis and pain in their lower back.
And again because judges see it so often how they tend to sometimes discount the severity of it and whether in fact it is truly disabling. Further you have to realize and this is something you probably wouldn’t think about, but it’s actually the case some of the judges that I’ve been in front of have actually had back surgery because again back problems are pretty common in the population and of course a lot of these judges have very good insurance they have physical therapy afterwards, they have good doctors and so forth.
And so their recovery might be more uneventful than yours. Again, a judge is not doing physical labor and again he has got typically real good health care. If you’ve done physical labor or if your health care is not as good you don’t have access to physical therapy or or medication or as much follow up then you may not have gotten the same results as the judge but again the judge who’s deciding your case is looking at you saying I went through the same surgery and I’m fine. You know I can’t play basketball anymore but but.
Winning Strategies for Back Pain Disability Cases
I can play golf and I can do a lot of different things and he or she you may feel like well you know I’ve recovered how why can’t you And, again, that’s just human nature but just be aware of it. I’m not saying that makes the judge not sympathetic to you but just be aware that you need to do something to stand out a little bit and show the judge that your situation is one that did not resolve as easily as his or hers may have. I think that when you deal with back pain cases.
Like in any Social Security case number one you want to emphasize if you’ve got a long work history. I think this is a factor that you may not think about but this is i think a factor that many judges find it very very compelling. If you have a long consistent work history where you’ve been in a job, you’ve performed admirably at the job you’ve made good money at the job. people don’t give up good jobs and opportunity for retirement, a pleasant retirement, to collect $1,500 or $2,000 from Social Security. So, if you’ve got a long work history.
Especially if it’s been with one company emphasize that and let the judge know that you’re not leaving your job because you want to retire but because you have really no other choice. By the same token also explain to the judge that you tried to look for a job that was less demanding on your back. I think in back pain cases unsuccessful work attempts and that would be defined as a job attempt at lasted less than three months that can be very persuasive. If you show that you went to 2 or 3 different places and.
Tried to do different types of jobs maybe at job one there was too much standing and at job two there was too much sitting. if you show that you’ve really tried to work but you could not find anything that would fit your a particular profile and your capabilities judges find that compelling. Be aware of course that once you get beyond 3 months it looks like a a real work attempt and that could be a problem. So I’vet discussed this in another tutorial which I’ll have a link here.
Onscreen but be careful about work attempts that last longer than 3 months that can be an issue. But if it is less than three months even multiple unsuccessful work attempts can be fairly compelling evidence. I think with back pain cases you need to be prepared to show diagnostic studies ideally, an MRI, that shows a herniated disk or multiple herniated disks. CT scans can also do it. Realize there’s a difference between a bulging disc and a herniated disk. A bulge is not as serious and a lot of people.
Walk around with bulging discs without problems and they’re able to function, whereas a herniated disk is something that’s a little more serious takes longer to recover from so ideally our judges are looking for herniations although bulges at multiple levels especially if the bulge impinges upon your spinal cord that can also be helpful but again judges are going to look for diagnostic tests. Xrays are not to do it it’s going to really need to be an MRI or CT and of course I know those are expensive and sometimes it’s hard to get them.
But if you don’t have them that’s gonna make your battle a little more uphill. So I think that ideally you should have diagnostic tests and also to that same point I realize that disc problems can heal so if you have an MRI from four years ago, the judge isn’t necessarily going to believe that your back condition is exactly the same now. So again if you can get a repeat MRI showing that the herniation is still there and you’re still having problems or that your problem has gotten worse, that could be.
Helpful. And I think that just as you want to show that you are that you tried to work if you’ve got back problems show that you’ve been completely compliant with your doctor’s proposed therapy, whatever it may be. If the doctor tells you lose weight, try it even if you’re not successful. If you try and show that you made a good faith effort to do so sometimes it’s hard to lose weight. either A because you’re not mobile, or B maybe you’re diabetic or there’s other issues but show that you gave it a try.
If you smoke you should stop smoking because again as you may know a lot of doctors will not do surgery on people who smoke and again that just shows you’re making an effort to try to improve your situation. Judges appreciate that that somebody who has a health problem is doing everything he or she can to improve that situation even if it is not directly related to the back problem it could be to your general health. I mean losing weight or stopping smoking smoking could be two of those factors. I think you should be completely compliant with.
Treatment and just my experience has been that when somebody has a back problem typically the doctor will start off by offering some form of physical therapy to try to strengthen the muscles surrounding the back and so forth. That may not always work but again that’s typically the first part of what they call conservative treatment. Secondly they may suggest epidural steroid injections or blocks and and these are different types of minimally invasive treatments where they inject your back or they do radiofrequency to kill off nerves and these are things that are short of surgery but can provide relief sometimes.
Longterm relief and if the doctor recommends that and you go through it and still are not having any success again that shows your trying your best. and these things can be painful, by the way, so again the judge will recognize that if you’re not able to get relief from these things but you’re trying it that showing some good faith. typically after that surgery would be the next option if you’re a surgical candidate. of course not having back problems a surcharge surgery candidate um. and by the way judges do not hold it against you shouldn’t hold it against.
You if you decide not to undergo surgery they recognize that um. back surgery is pretty major surgery to pretty invasive and if you choose not to go that route uh. judge full was not supposed to my experiences they won’t hold that against you specially if you can explain why you didn’t have surgery and be prepared answer why a lot of times because i my doctor said that you know there’s a possibility i could be paralyzed through this form linen improve my pain in my situation would be better.
Uh. that will be res one one would not have surgery so again be prepared to answer that question but that’s a that’s an issue there on the surgery not an option or if it is an option it’s not successful uh. the next step in the process of something called longterm pain management that’s usually where i do have a doctor or prescribed and lot of orthopedic practices have this uh. prescribed a longer narcotic pain medication pain medications to let you uh. somehow live with some comfort and of course the risk there is that you know you get addicted to the pain.
Medication or the have side effects odyssey drowsiness a big problem constipation within hours of the problem things like that but again if you’re in along from pain management if somebody’s coming in there and method of their own some sort of a hydrocodone uh. dredges recognize that those can have longterm effects and again you want to emphasize that you don’t want to be on the use of pain medications but it does allow you to function in men on the way uh. but that’s kind of wood resident judges are looking for.
Um. they’re looking for um. extensive and ongoing treatment it’s it’s it’s not good if you have been of doctrine two years uh. he was getting pain medicine refilled future we try to get to the doctor um. i think that a lot of people of longterm back problems also have a level of depression i think this is especially true for men uh. if you’ve shearing chronic pain and it’s not unusual to become depressed and uh. i seek treatment medications are therapy for depression that something that’s pretty consistent form from back problems.
On i think finally when you have back issues he’s be prepared to give very specific descriptions of your capabilities again um. in a back pain case the judge is going to know how long can use it how long can you stand how much can you left and again you want to be thinking in terms of very specific numbers avoid not very much for not very far and i think judge says for example how long can use it a good answer would be i can sit for ten to fifteen minutes and i’ve got to stand.
Up and walk around for ten to fifteen minutes to stretch out i can do this true three times i can maybe sit for a total two hours in the day uh. but after about two hours of selling even if i’m standing moving around my pain level gets the point that it take a pain pill and i’ve got to lie down so be prepared to give totals because again um. if you can sit in standard with the new going back and forth then there are jobs which was called and said stand option that you could.
Theoretically do but if your total capacity for setting is three hours an eighthour day in to our standing in an eighthour day even with breaks that’s only five hours have stymied hours nonstop fulltime more continued oneself be prepared to give very specific examples uh. how long you can be very strong chins i’m i’ve literally sitting judges take that testimony unplug it right into the question they give to the vocational witness and of course uh. vocation witnesses can ensure no jobs and and we went south be prepared to be great be very specific.
And remember stay away from that very long not very far or it depends in an everyday is different you need to do to get an answer and it’s very important to know how to make sure that your answers are and compare with your attorney i found representing you will do it at a time when their you know we could to before the hearing uh. make sure that what you’re describing is not fulltime worker noticable to full time work because how you want to show that you’re not going to be late hours of work.
I during the course of the day um. generally but how do you get to the hearing most of time these cases are decided on front row capacity and there is of course the worst thing for muscular skeletal muscle celts cultural promises listing one uh. very hard to beat the listing in investi medical evidence is really compelling and somebody uh. the stations who dropped the ball it’s not to be listing level uh. suffer the most part you can argue functional capacity uh. you could argue the grid rules.
Uh. if you’ve got a limited education women who work background because again fear physical problems and the real education and the new work background uh. some of the grid rules could applies to take a look at those um. most of the hearings i do what they’re gonna be functional capacity who were arguing that your capacity to perform reliably and even a simple entrylevel job uh. with the sit stand option he’s not there because of limitations physical intentions as well as pain antisocial limitations that arrived for the pain.
I need problems of concentration focus uh. reliability and so for so that’s how our approach back cases again big picture is there’s a lot of not there a lot of judges cm all the time so you want to make sure that that all your tease you crossed and i’s are dotted you’ve got a compelling evidence so you’ll stand out a little bit from the crowd i hope this has been helpful going my name is jonathan ginsburg a social security disability lawyer here in atlanta trivia questions feel free to give me a call.