I would like to ask you a couple of questions regarding this post about “A good functional capacity form can overcome bad testimony”. I have various back and leg problems for which I am being treated with Meds and lumbar epidural injections, by an orthopedic specialist. I also have carpal tunnel in both wrists and this specialist has recommended surgery. But I am scared of surgery (having never had one before).

My question is: Will my turning down surgery for CTS help or hurt my case? I also have a good RFC form completed by my primary Dr, who is in the same building as all of my other Drs, and has access to all of my records. Also, I am very overweight and was wondering, if I had a gastric bypass done and lost weight before my ALJ hearing, would that help or hurt my case? Thank you in advance, Faye

Jonathan Ginsberg responds: Generally, a Social Security judge will not “punish” you for refusing to undergo surgery. Every surgery involves complications and carpal tunnel surgery, in particular, is not always 100% successful. However, there are some judges who take the position that a claimant needs to take advantage of every possible cure. Once I had a judge go into graphic detail about his wife’s hemorrhoid surgery in his question to my client about why my client had refused the surgery.

I would say that you should try to get a sense of how the judge who will hear your case thinks about a claimant’s refusal to undergo surgery. At the very least, you should have reasons for your refusal, i.e. concerns about the likelihood of success, concerns about anesthesia, lack of access to post surgical physical therapy.

With regard to the gastric bypass surgery, I think you need to pursue whatever action is in your best interest health wise. Note that if you undergo gastric bypass surgery, you damage your argument that you are afraid of surgery in general. Obesity used to be a listing level impairment but it no longer is. However, obesity can be a factor that Social Security can consider as a reason why your back and leg problems are worse. And, since gastric bypass surgery is most likely more dangerous than carpal tunnel surgery I don’t think that any judge would fault you for refusing to go that route.

I think that the big picture question you raise is – to what extent do Social Security judges expect a claimant to pursue remedial treatment. I think that there is an implied obligation to take reasonable action but in my view, surgery, with its inherent risks, is over the line. However, if you refuse surgery, you need to have well thought out reasons why you are refusing the surgery and you have to have a record showing your pursuit of non-surgical alternatives.

–Jonathan

[tags] carpal tunnel surgery, obesity, gastric bypass surgery, Social Security disability, non-surgical alternatives [/tags]