October 23, 2019

Pre-Hearing Brief – Fibromyalgia Case

This is the pre-hearing brief that I submitted in the fibromyalgia case described at Case Study #7:
Judge Frank Wallace
ODAR
Atlanta, GA

RE: Claimant: Mary Ann Smith
SS#:  123-45-6789

Dear Judge Wallace:

As your files will reflect, I represent Mary Ann Smith with regard to her claim for SSDI benefits.  Please allow this letter to serve as my pre-hearing brief, and as a request for an on-the-record decision, if appropriate.  A hearing in this case is currently scheduled for 8:45AM on Friday, September 26, 2008.

This case arises from a DIB claim filed by Ms. Smith on October 20, 2005.  My review of the file shows that the claimant is insured for Title II benefits, with a date last insured of June 30, 2009.  The claimant alleges an onset date of October 15, 2003, her last day of work as an accounting manager at Snellville Plastics.  She is currently 52 years of age with a birth date of March 23, 1956.  The claimant was aged 47 years at the time of alleged onset.

The claimant has a long and consistent work history.  Her most recent SGA work was the accounting managerial work at Snellville Plastics, where she was employed from September, 1998 through October, 2003.  Prior to the Snellville Plastics job, the claimant worked as a staff accountant for Douglas Brothers from September, 1988 through September, 1998.

The claimant has had one unsuccessful work attempt since the alleged onset.  She performed clerical functions for Little Engineering Company in December, 2006 and January, 2007.  The earnings record in this case shows $2,641.50 in earnings for 2007, which relates to this work attempt.

Ms. Smith stands 5’6″ and weighs approximately 140 lbs.  She has a college education and a B.S. degree in accounting.  There is no military service or other vocational training.

The medical basis of Ms. Smith’s claim relates to a diagnosis of fibromyalgia, chronic pain syndrome and depression.  Her clinical case history is similar to that of many fibromyalgia patients – she is a high achieving, detail oriented female whose symptoms began to manifest themselves following a physical and/or emotional trauma.  In Ms. Smith’s case, she has experienced both types of trauma, after which her fibromyalgia symptoms began to become apparent.  In the mid-1980’s Ms. Smith underwent surgery of the jaw to correct a condition in which her jaw muscles went into spasm, leaving her with severe headaches and jaw pain, and unable to open her mouth.  The surgery was not successful and resulted in a subsequent procedure to remove her right TMJ joint, leaving her with an asymmetrical appearance and permanent numbness on the right side of her face.

In the late 1990’s, the claimant’s mother was diagnosed with Alzheimer’s Disease and Ms. Smith and her husband brought the elderly mother into their home, where they undertook the difficult task of caring for an increasingly symptomatic parent.  In 2003, Ms. Smith finally acceded to pressure from relatives and physicians to move her mother into an Alzheimer’s facility, despite her promise to her mother and late father that she would not take this step.  The mother suffered a stroke within days of the move and passed away less than a week after moving from the claimant’s home.

Ms. Smith describes the last six months of her mother’s life as being a very traumatic time and a time when she began experiencing a great deal of fatigue, myofascial and muscular pain.  Shortly after her mother’s death in mid-2003, the claimant also began experiencing symptoms of memory loss and extreme fatigue, resulting in poor performance reviews from her employer.  Ms. Smith resigned her position in October, 2003 when her employer refused to pay her for her last payroll period, contending that the claimant was not mentally present at work.

The medical record in the file reflects the claimant’s on-going effort to seek relief from her symptoms.  I cannot provide you with exhibit numbers because the file has not yet been worked up, but the record should contain treatment notes from the following providers:

  • Medical management records from Mark Martin, M.D. (Dalton Family Medicine), the claimant’s primary care physician
  • Pain management treatment notes from Eric Davidson, D.O. (Rehabilitation Physicians of Georgia) – the claimant’s pain management physician from 4/17/07 through the present, where she is receiving medications and regular trigger point and epidural steriod injections
  • Pain management treatment notes from Dr. Abend – the claimant’s pain management physician from 2003 through 2007
  • Inpatient hospitalization treatment records from Northeast Medical Center – for suicide attempt in May, 2008
  • Treatment records from Dr. Michael Csonka and Resurgens Orthopedics for treatment of left and right shoulder pain and rotator cuff repair
  • Mental health counseling treatment notes from Dr. David Redwine

Both Dr. Davidson and Dr. Martin have completed functional capacity forms at my request.  I have previously submitted these forms, but in the event that your files does not contain them, I am enclosing for your review.  I am also enclosing a current list of medications as the side effects of these drugs create functional limitations.

I believe that the activity and reliability limitations set out in either of these functional capacity forms would be sufficient to elicit testimony of “unable to perform any job” from any qualified vocational witness and I would ask that these forms be adopted as being reflective of my client’s residual functional capacity for work.

My client complains of the following symptoms, all of which she is prepared to testify about:

  • trigger point pain in her shoulders, low back with radiation into right leg
  • overwhelming fatigue during the day
  • insomnia despite powerful sleep medication (Halcion at its maximum does of .5 miligrams daily)
  • “fibro fog” – mental confusion that has left the claimant unable to pay bills or handle the family checklist
  • poor concentration arising from four (4) Oxycontin 40mg and 2 Percocet tabs daily

As noted above, the claimant did try to work in December, 2007 and January, 2008.  This work attempt reflects the claimant’s sincere desire and motivation to work.  Currently Ms. Smith and her husband are facing very difficult economic times.  Mr. Smith is currently working as a carpenter’s helper at an hourly wage after 30+ years as a well paid corporate executive.  The claimant and her husband have exhausted their savings and they currently rent out their home and are living on a small houseboat at Lake Burton to reduce monthly living costs. The claimant will testify that her suicide attempt in May, 2008 arose from despondency over the loss of family income and the claimant’s inability to contribute by working.  This is not an individual who has any improper motivation for seeking disability benefits.

I hope that this pre-hearing brief serves to clarify the issues in this case.  Thank you for your consideration.

VERY TRULY YOURS,

GINSBERG LAW OFFICES, P.C.