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Winning Mr. Smith's Virginia Social Security Disability Hearing

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By: Jerry Lutkenhaus

The Problem: I have won many Social Security Disability Hearings but Mr. Smith’s case presented some special problems because of his education and prior work experience.

Education: Mr. Smith had a college degree and a graduate degree. Thus, he was much more highly educated than the usual client.

Past Job Experience: He had worked 31 years as an accountant. His past work was not only a sedentary (sit-down) job but also a job that gave Mr. Smith many transferable skills.

Smith's Back Surgeon’s Opinion: Smith’s back surgeon had done a back fusion on Mr. Smith. The post-surgery MRI indicated Mr. Smith’s fusion was progressing; therefore, the surgeon did not see any structural reason for why Mr. Smith was continuing to have excruciating pain.

The Social Security Doctor’s opinion: This doctor examined Smith one time and concluded Smith was recovering from his surgery and would not be disabled for the requisite twelve months that is required by Social Security.

His Age: Mr. Smith was 57 years of age. This was a favorable age under Social Security Rules but Smith’s education and work experience seemed to override Smith’s favorable age.

My Strategy: Mr. Smith asserted he was in unbearable pain despite the apparent successful surgery. He said the surgery had made his pain worse. I needed to obtain a favorable evaluation from the surgeon despite his earlier opinion. Once we managed to obtain this evaluation we also obtained an evaluation from Smith’s family practitioner supporting a finding of disability. Social Security does not accept a doctor’s statement that one is “disabled." But Social Security will accept the opinion of physicians on how common work activities such as standing, walking, lifting, sitting, concentrating, etc. are affected by an impairment such as back pain. Thus, the evaluations we obtained illustrated Mr. Smith’s residual ability to do the above activities was severely curtailed. At the pre-hearing conference, I went over these evaluations with Mr. Smith and his adult daughter. We wanted to make sure there were no inconsistencies between Mr. Smith, his physicians, his daughter, and Mr. Smith’s own prior statements to Social Security.

The Hearing: On the appointed date we appeared before the Judge. Mr. Smith and his daughter testified about his pain and how it limited his activities. The Vocational Expert testified about Smith’s past work experience. He also testified due to his limitations his skills were not transferable to any other sedentary jobs.

The Decision: Because we had shown Smith to be limited to less than sedentary work, because he was 57 years old, and because the Vocational Expert found Smith to have no transferable skills, we won his disability case. Mr. Smith was overjoyed with the Judge's decision.

The Keys to the Win: Smith and his daughter testified convincingly about his impairments at the hearing. Smith was over 55 years of age. We managed to obtain favorable evaluations from Smith's surgeon and general practitioner. The Vocational Expert testified Smith had no transferable skills. Thus, we overcame the problems presented by Smith's past work background as an accountant and his superior education.

Copyright© 2006, Jerry Lutkenhaus. ALL RIGHTS RESERVED
This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Jerry Lutkenhaus is a practitioner of Workers' Compensation and Social Security in the Richmond, Virginia area for over 30 years He was given an "AV" rating by Martindale Hubbell in 2003. Lexis Nexis listed him in the 2005 Bar Register of Preeminent Attorneys. For more information, see our websites at http://www.geraldlutkenhaus.com & http://www.virginiadisabilitylawyer.com or call Jerry Lutkenhaus at 804-358-4766 for a free consultation on your claim.

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