Purchase a Prehearing Brief from Terri M. David for a convenient flat fee and receive it within 10 days upon receipt of file!
Based on her experience as an OHO Senior Attorney Adjudicator and Decision Writer, Terri M. David’s Prehearing Briefs reflect what most ALJs want to see in regard to content and format.
Need it now?
If you need this brief within 48 hours, order the RUSH option here.
After your purchase:
Email Terri M. David at email@example.com with your file and any additional instructions. (If desired, a secure link to upload your file to Dropbox will be provided upon request.)
Prehearing Brief, 1500 Page File or less
Terri M. David is a Social Security Disability (SSD) professional and former SSA/Office of Hearings Operations (OHO) Senior Attorney Adjudicator.
Terri began as an Attorney Decision Writer in Nashville, TN in 2004. She was promoted in 2006 to a position at headquarters in falls Church, VA, where she adjudicated disability claims at the reconsideration level. While there, she began her career as an ODAR/OHO trainer and mentor to new adjudicating attorneys and decision writers.
In 2007, Terri worked as a Senior Attorney Adjudicator in Houston, TX. There, an opportunity to create training material and provide training to new attorneys and law interns became possible and increased exponentially based on her extensive training in Falls Church, VA. She went on to become a National Decision Writer Trainer in 2008, teaching the basics of the 5-Step Sequential Evaluation and persuasively writing legally defensible Administrative Law Judge (ALJ) decisions.
Terri began working as a Senior Attorney Adjudicator Trainer in 2010. She trainer new and experienced senior attorneys on how to improve adjudicating disability claims at the hearings level, prior to an ALJ hearing.
Terri M. David’s SSD training is focused on efficiently and accurately adjudicating disability claims and writing persuasive ALJ decisions. Now, Terri shares years of valuable experience as an adjudicator, trainer, and decision writer through training concentrated on expediting and winning cases, understanding SSD law, and efficiently maneuvering the SSD claims process.
November 1, 2018
Honorable Judge Richardson
Office of Hearings Operations
1010 Hillcroft Dr.
Houston, Texas 77096
Pre-Hearing Brief for a Fully Favorable Decision
On August 20, 2015, Claimant protectively filed a Title II application for a period of disability and disability insurance benefits and Title XVI application for Supplemental Security Income. In both applications, Claimant alleges disability beginning July 15, 2015. The date last insured is June 30, 2018. There are no prior files. The claimant filed a written request for hearing on January 15, 2016 (20 CFR 404.929 et seq. and 416.1429 et seq.). A hearing is scheduled on December 22, 2018 at 9:30 am.
Claimant is currently 51 years, 5 months of age. He was 48 years, 2 months of age at the alleged onset date. He turned age 50 on May 7, 2017. Claimant has 12 years of education and able to communicate in English. Claimant’s past relevant work consists of the following:
- Retail Manager, DOT# 185.167-046, light and skilled
- Cashier, DOT# 211.462-014, light and semiskilled
- Stocker, DOT# 299.367-014, heavy and semiskilled
Medical Evidence and Conclusions of Law
The issue is whether the claimant is disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act. Disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. The evidence discussed below shows Claimant is not able to perform substantial gainful activity on a regular and continuous basis due to severe impairments and is disabled pursuant to the framework of Medical-Vocational Rule 201.21 and directed by Rule 201.14.
Step 1: The claimant has not engaged in substantial gainful activity since the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). Although Claimant attempts to work from September 2015-November 2015, his earnings do not rise to the level of substantial gainful activity. His unemployment benefits in August 2015 and September 2015 are neither countable earnings nor substantial gainful activity pursuant to 20 CFR 404.1574 and 416.974.
Step 2: Considered singly and in combination, the following impairments are severe because they impose more than a minimal limitation on the claimant's ability to perform basic work activities and are expected to last, or have lasted, more than 12 continuous months:
- Lumbar spine degenerative disc disease with radiculopathy
- Bilateral carpal tunnel syndrome status-post releases
- Insulin Dependent Diabetes Mellitus with neuropathy
- Major depressive disorder
- Generalized Anxiety Disorder
Step 3: Based on the evidence available as of the date of this prehearing brief, Claimant does have an impairment or combination of impairments that medically equals Listing 1.04A in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
In Listing 1.04A, criteria include disorders of the spine resulting in compromise of a nerve root or the spinal cord with evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, and positive straight-leg raising test (sitting and supine).
The medical evidence of record shows Claimant has lumbar spine degenerative disc disease with radiculopathy. He has limited range of motion on physical examination (5F/8-10). Although he has a positive straight leg raise test, it is not clear in the evidence if he was sitting or lying down (8F/5). Moreover, Claimant is obese and must be considered with his musculoskeletal impairments pursuant to SSR 02-1p. Therefore, Claimant medically equals Listing 1.04A.
In the alternative, a 5-step sequential evaluation is discussed below.
The medical evidence of record shows a history of back pain and diabetes mellitus worsened by obesity. Claimant’s back pain has been treated with prescribed narcotic medication, physical therapy, and spinal blocks. Despite following a recommended diet, he is limited in exercising due to back and right foot pain. Although he is treated with Insulin, his blood sugars are frequently around 200. He requires diabetic foot care due to slowly healing ulcers on his right foot, indicative of worsening diabetes mellitus. In addition to back and right foot pain, Claimant experiences bilateral hand pain due to carpal tunnel syndrome. He underwent bilateral carpal tunnel releases; however, repetitive activity exacerbates his pain. Moreover, he wears bilateral wrist splints at night due to pain and numbness. His average weight is around 256 pounds at five feet, 10 inches (BMI at 36.7). The National Health Index indicates an individual with a BMI of 30 and over is obese.
Claimant has a long history of back pain that must be considered in combination with obesity pursuant to SSR 02-1p. SSR 02-1p states that “… the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately.” The Ruling goes on to say that “obesity…commonly leads to, and often complicates, chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems.” Additionally, this Ruling states that obesity will be determined to be severe “…when, alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual’s physical or mental ability to do basic work activities.” The medical evidence of record shows Claimant’s obesity exacerbates chronic back pain.
In addition to physical impairments, Claimant requires treatment for anxiety and depression. Although he has a long history of underlying depression and anxiety, his worsening physical pain and functional limitations exacerbate his mental impairments. Claimant was excelling in his career and earning respectable wages until the alleged onset date; he worked his way up from stocker to manager in a retail store. This decline in his health and subsequent ability to work results in increased anxiety and depression. He is treated with prescribed medication and attends individual therapy about twice per month.
Claimant sought treatment at Hermann Hospital in May 2014 for back pain that radiates down his right leg (2F). He describes the pain as stabbing and aching pain exacerbated by prolonged sitting, standing, and walking (2F/5). He is initially prescribed Tylenol #3; however, this does not relieve his pain (3F/10). His primary care physician notes Claimant looks in distress during a physical examination in August 2014 (2F/7). A physical examination in August 2014 shows a limited range of motion of the low back when bending and twisting (5F/8-10). Claimant returns in September 2014 and October 2014 complaining of chronic back pain that is interfering with sleep. His physician prescribes Ambien for sleep disturbance and a sample of Oxycontin for pain (2F/14). Claimant is hesitant to take narcotic pain medication due to addictive properties and does not take the sample of Oxycontin (2F/22). Unfortunately, he returns in November 2014 reporting chronic back pain that is shooting down the right leg (2F/27). His primary care physician prescribes physical therapy twice per week for eight weeks (5F/10). During the initial physical therapy examination, Claimant has difficulty bending to touch bilateral knees and appears to be in distress (5F/12-16). He returns to his primary care physician in December 2014 complaining of worsening back pain with physical therapy (2F/30). Therefore, Claimant agrees to try Oxycontin due to chronic pain despite treatment in physical therapy (2F/35). His physical therapy discharge note indicates Claimant made minimal progress despite consistent effort (5F/42). In February 2015, Claimant is examined after losing his balance and falling, which exacerbates his back pain (2F/52). At this point, Claimant requires ongoing treatment for pain rated at a 7 on a worsening scale from one to 10 (2F/60, 72, 95, and 102). In May 2015, a lumbar spine MRI confirms lumbar spine degenerative disc disease at L1-2, L3-4, and L5-S1 with nerve encroachment (2F/96). In August 2015, an EMG/NCS confirms radiculopathy of the right lower extremity (3F/14). Therefore, in January 2016 and March 2016, he undergoes L1-2 and L3-4 spinal block to relieve pain and radiculopathy (2F/75-77 and 80). Despite some improvement, physical examinations in October 2016 and January 2017 show a limited range of motion of the low back (3F/60-65). In May 2017 and August 2017, Claimant reports Oxycontin is causing grogginess and daytime sleepiness (2F/131). His primary care physician attempts to reduce the dosage of Oxycontin; however, Claimant has excruciating pain and his dosage is returned to 80 milligrams per day (2F/136). In May 2018, back surgery is discussed as an option. The medical evidence shows chronic back pain is not fully relieved with aggressive treatment and narcotic pain medication.
In August 2014, Claimant complains of chronic bilateral wrist pain that worsens when performing paperwork required for his job as a manager (1F/3). His treating physician at St. Joseph’s Hospital prescribes wrist splints to wear at night for pain and numbness (1F/15). In February 2015, Claimant returns and reports worsening pain when lifting and carrying objects at work and performing household chores such as sweeping (1F/52). He is given exercises and stretching to perform throughout the day (1F/55-57). In May 2015, Claimant reports some relief; however, he is unable to finish tasks by the end of a workday (1F/60). Unfortunately, Claimant requires a right carpal tunnel release in May 2015 (1F/75-80). He returns in August 2015 for a left carpal tunnel release (1F/90-95). The evidence shows Claimant continues to experience bilateral wrist pain when performing repetitive tasks, lifting, and carrying items over 10 pounds (1F/101 and 3F/94-96).
Claimant began treatment for diabetes mellitus in 2013 with blood sugars around 250 and A1C at 6.8 (6F/5). With an A1C at 6.8, it appears Claimant’s diabetes mellitus was not detected for some time. Nonetheless, he is prescribed 500 milligrams of Metformin per day (6F/7). In November 2014, Claimant returns to his endocrinologist reporting dizziness and fatigue (6F/23). His glucose level is at 213, which indicates elevated blood sugar level despite medication (6F/23-24). At this time, he is started on Insulin (6F/25). Unfortunately, Insulin fails to properly manage his diabetes mellitus with a slowly healing right foot ulcer in April 2015 (6F/33). His endocrinologist refers Claimant to diabetic wound care center at Hermann Memorial (6F/41 and 7F/2). His right foot wound requires debridement and IV antibiotics (7F/5-12). In June 2015, Claimant is prescribed Neurontin for diabetic neuropathy of bilateral lower extremities (6F/52). Unfortunately, in December 2015, Claimant’s right foot ulcer continues to slowly heal (7F/23-26). Throughout 2016 and 2017, he requires frequent treatment for elevated blood sugars and diabetic foot care (6F and 7F). In March 2018 and July 2018, Claimant reports ongoing right foot pain and fatigue with A1C levels at 6.4 and 6.6, which indicates uncontrolled diabetes mellitus despite treatment (7F/78-84).
Claimant is referred by his primary care physician for mental health treatment in April 2015 (11F). Claimant meets with a psychiatrist at Ben Taub Hospital and describes a history of worsening physical impairments that are exacerbating his depression and anxiety. Claimant reports excessive worry, sleep disturbance, crying spells, and irritability (11F/2). The psychiatrist prescribes Xanax in April 2015 (11F/3). Claimant returns in July 2015 complaining he is unable to work, which is worsening his depression and anxiety (11F/6). The psychiatrist recommends counseling with a licensed counselor (11F/8). Claimant begins weekly counseling in September 2015 (12F/2). Unfortunately, counseling sessions reflect an anxious individual with depressed mood. A mental status examination reveals difficulty concentrating, fair insight and judgment, and blunt affect (12F/4-5). His Xanax dosage is increased in December 2015 (12F/11). Evidence shows in February 2016 Claimant moves in with his son, which worsens his depression and fear of financial insecurity (12F/13-15). Claimant reports increased irritability with his son and other family members in October 2016 (12F/16). His counseling sessions are reduced to every two weeks due to financial problems in January 2017 (12F/22). The record indicates counseling and prescribed medication are not fully managing depression and anxiety.
Medical Source Opinion
Claimant’s primary care physician, Dr. S. Patel, completes a Medical Source Statement in May 2018 (10F). Claimant requires treatment with his primary care physician about every two months as of June 2013 (1F, 2F, and 3F). The treating source indicates Claimant is treated for back pain, wrist pain and numbness, and uncontrolled diabetes mellitus with neuropathy (10F/1). Moreover, the treating source reports Claimant did not respond well to physical therapy and requires narcotic pain medication with medicinal side effects (10F/1). The treating source opines Claimant can lift and carry up to 10 pounds occasionally in an eight-hour day; sit for two hours with a sit/stand option every 30 minutes; stand for one hour with a break every 15 minutes; and walk for one hour with a break every 15 minutes. He can rarely bend, twist, squat, or climb stairs and ladders. Claimant can rarely reach, handle, and finger. He should avoid hazards such as operating moving machinery and unprotected heights. The treating source reports functional limitations stem from chronic back and wrist pain as well as an unhealed right foot ulcer. Moreover, narcotic pain medication causes dizziness and drowsiness that interfere with Claimant’s ability to operate machinery, be aware of hazardous situations, and concentrate. This opinion is consistent with the evidence of record, internal office visit reports, and the state agency physical consultative examination.
DDS Consultative Examinations
A state agency physical examination is performed in August 2016 (8F). The consultative examiner notes Claimant was driven to the examination by a friend. Claimant reports his primary physical problems are back, right foot, and bilateral wrist pain (8F/1). Claimant describes a history of treatment for back pain involving narcotic pain medication, physical therapy, and two spinal blocks. He complains never wanting to take narcotic pain medication but felt he had no choice. Claimant reports Oxycontin causes grogginess and sleepiness. On physical examination, Claimant has some tenderness of the low back and needs assistance getting on and off the examination table. He was unable to fully squat and bend. The consultative examiner notes a positive straight leg raise test on the right (8F/5). Claimant has difficulty with tandem and heel walking. Claimant has weakness of bilateral hands with the right worse than the left (8F/6). His weight is 256 pounds at five feet, 10 inches (BMI at 36.7). The consultative examiner’s diagnostic impression includes lumbar spine degenerative disc disease, carpal tunnel syndrome, and obesity.
A state agency psychological consultative examination is performed in September 2016 (9F). Claimant reports increasing depression and anxiety when his back, right foot, and bilateral wrist pain worsened. He reports having depression years ago that returned recently. His symptoms include excessive worrying, difficulty concentrating, and irritability. During the mental status examination, he had difficulty with serial 7s and became frustrated during the interview. His insight and judgment were only fair. The consultative examiner notes Claimant appears to be in pain and is distracted. The consultative examiner concludes Claimant’s major depressive disorder and generalized anxiety disorder interfere with his ability to concentrate and interact with others.
At the reconsideration level, a DDS nonexamining consultant reviews the medical evidence as of January 2016 (3A). The consultant refers to medical evidence showing treatment for diabetes mellitus; back, right foot, and bilateral wrist pain; and depression and anxiety. Although the consultant notes Claimant weighing 246 pounds at five feet, 10 inches (BMI at 36.7), obesity is not addressed in the assessment. Nonetheless, the nonexamining consultant finds Claimant has only mild difficulties stemming from depression and anxiety; therefore, his depression and anxiety are nonsevere. However, a subsequent state agency psychological consultative examiner in September 2016 finds moderate difficulty in concentrating and interacting with others (9F). The nonexamining consultant further finds Claimant can perform a full range of light work. However, this consultant dismisses and/or minimizes Claimant’s long history of back pain and right foot diabetic ulcer that significantly interferes with his ability to sit, stand, and walk for prolonged periods of time. Overall, this assessment is overly optimistic and is not consistent with the evidence as a whole.
The medical evidence of record shows significant functional limitations stemming from physical and mental impairments. Claimant’s lumbar spine degenerative disc disease with radiculopathy reduces his ability to sit, stand, and walk for prolonged periods of time. His back pain precludes his ability to bend and twist frequently. Moreover, his right foot diabetic ulcer further reduces his ability to stand and walk despite a long history of diabetic foot care. Claimant’s bilateral wrist pain and numbness reduce his ability to lift, carry, handle, and finger. Medicinal side effects of narcotic pain medication include an inability to concentrate and focus. Furthermore, his depression and anxiety further reduce his ability to concentrate, focus, and get along well with others. Overall, Claimant’s symptoms preclude his ability to perform even unskilled sedentary work on a regular and continuous basis.
Step 4: Considering Claimant's age, education, work experience, and functional limitations, he is not able to perform any past relevant work (20 CFR 404.1565 and 416.965).
Step 5: The Medical-Vocational Rules direct a conclusion of either "disabled" or "not disabled" depending upon the claimant's specific vocational profile and functional limitations (SSR 83-11). When the claimant cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has nonexertional limitations, the Medical-Vocational Rules are used as a framework for decisionmaking unless there is a rule that directs a conclusion of "disabled" without considering the additional exertional and/or nonexertional limitations (SSRs 83-12 and 83-14). If the claimant has solely nonexertional limitations, Section 204.00 in the Medical-Vocational Guidelines provides a framework for decisionmaking (SSR 85-15).
In this case, based on a review of the medical evidence of record and vocational factors, Medical-Vocational Rule 201.21 is used as a framework for a finding of disabled and directed by Rule 201.14 on May 7, 2017 (when Claimant became age 50).
Therefore, Claimant has been under a disability, as defined in the Social Security Act, from July 15, 2015 (20 CFR 404.1520(g) and 416.920(g)). Based on the application for a period of disability and disability insurance benefits protectively filed on August 20, 2015, Claimant is disabled under sections 216(i) and 223(d) of the Social Security Act. Based on the application for Supplemental Security Income protectively filed on August 20, 2015, Claimant is disabled under section 1614(a)(3)(A) of the Social Security Act.