Administrative Law Judge
ODAR
Ods Tower, 17th Floor
601 SW Second Ave.
Portland, Oregon 97204
Re: B
Judge Haack,
This letter is a follow-up to the hearing held on February 9, 2009 related to SSD benefits for the above mentioned claimant.
As Ms. **** shared with you, she was eager to keep and maintain her job at THE OREGONIAN. She was so eager to maintain her job that after the terrifying injury of a “near scalping” she returned to work. After her injury was calmed down through medication and medical care, she returned to work. However, her upper back, shoulder girdle and neck pain would continue to flare up causing her to once again seek relief for the severe pain and tightness.
Ms. **** was “lucky” to have found John P. Takacs, D.O. Who worked with her to keep her able to perform her job for many years. From 1991 through the day she was let go from her job in July, 1998, his professional care made it able for her to continue to work.
You questioned Dr.Takacs different “prescriptions” that would allow her to lift 15lbs. at a certain period of time and then at another date later she would be limited to sedentary work and only able to lift 5lbs.. It is clear that the claimant’s physical limitations were worsening. For example, his prescriptions from 10/3/97 through 6/4/98 present the differing status of the claimant’s physical condition ending with a 5lbs. lifting requirement and sedentary work.
You also questioned the validity of the “PHYSICAL RESIDUAL FUNCTIONAL CAPACITY QUESTIONNAIRE” completed by John Takacs DO on 6/12/07 related to a description of symptoms and limitations of the claimant in 1998. Dr. Takacs knew the claimants physical capacities well and kept copious records of his treatments and encounters with the claimant during this period of time. To complete the questionnaire, all he had to do was refer to his medical records of the claimant. In that questionnaire, Dr. Takacs clearly documents the severe limitations on the claimant’s abilities to sit, stand, shift positions, lifting capacities, stooping, fingering, manipulating, reaching and twisting. He also clearly claims that the pain and the medications were having constant effect on the claimant’s ability to concentrate and attend to her job.
Judge, your inference that the claimant could work because she was assisting her sister in a T-shirt business is misunderstanding of the truth of that particular situation. The claimant only sat at a table and placed t shirts (approx. 5 ounces) in a plastic bag (less than 1 ounce) approximately once every 15 minutes while her sister did all the standing, selling, talking, reaching etc. The other inference related to the ice cream venture. Claimant was only helping her nieces sell ice-cream from the back of her pick-up while she drove. This happened on 4 different weekends for less than 6 hours/day. These 2 activities were not jobs and did not rise to the level of substantial gainful activity. You swore the claimant to tell the truth and she did; your inference that she was less than truthful is blatantly false and condescending and based on pure speculation.
Judge, your comments with regard to the medical record submitted by Dr. Takacs appear to be very arbitrary and lacking understanding of the human condition. As Dr. Takacs noted on page 4 of the above referenced questionnaire claimants impairments would likely produce “good days” and “bad days”…and that overall she would be absent for more than 4 days per month. This evidence from the medical professional who knew the claimant well and treated her on a regular basis is CLEAR that the claimant’s residual functioning capabilities are less than sedentary and therefore, she should be declared disabled. Her onset date should be set at 7/17/98.
When the Vocational expert was questioned as to whether someone with chronic cervical strains in her shoulder girdle and back, herniated discs that efface the spinal cord and pain/muscle spasms in neck, shoulders and back could perform the prescribed jobs he presented, he answered with a resounding NO.
When one considers the cumulative affect of all of the established impairments suffered by this claimant, it is clear that the claimant is not capable of sustaining any type of work activity as is required to maintain gainful employment. This decision should be made with consideration of the claimant’s age, education and what we feel is a fair and realistic functional capacity for less than sedentary work. Her onset date should be set at 7/17/98.
Most sincerely,
JoEllen Shannon
CEO/Senior Advocate in association with DANIEL A. BERNATH, ESQ