Maine Social Security Disability Lawyer

A Doctor's Opinion

When Social Security receives your disability claim, it reviews your medical records, and makes a determination on your claim. The SSA rarely obtains your doctor's opinion about your work-related functional limitations.

Rather, the SSA makes its own determination of your functional limitations. An in-house doctor infers your limitations from your medical records and the disability claim file, and completes an RFC form. 

The problem with this approach is that a doctor's treatment notes are intended to manage a patient's medical care, not to establish the functional limitations that Social Security uses to evaluate a claimant's ability to work. As a result, the method used by Social Security to evaluate disability often results in a denial of the initial claim.

Further, the in-house doctors at Social Security are reviewing hundreds and hundreds of claims. It is difficult to make your true limitations stand out in such an environment.

To remedy this situation, it is very important to obtain your doctor's opinion regarding your physical and/or mental limitations, and how those limitations affect your ability to work.  A medical source statement from your doctor setting forth your limitations due to your impairments is often the most powerful evidence in support of your disability claim.

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Tell your Doctor to write down your symptoms

In a recent blog post entitled "Get It Written Down!" Chicago disability attorney Aaron Rifkind tells the story of a claim that was granted quickly due to the completeness of his client's medical records.

I told her that it was because of her thorough medical records that we were able to win so quickly. She responded, "My records are so thorough because every time I go to the doctor, I tell him to make sure to write down everything I tell him, every complaint, and every pain I have, if you don't do that then no one will ever know what you have." And you know something, she is right!

One of the best things an individual can do when applying for Social Security disability benefits is to make sure that all of the complaints and medical issues are in writing.

This is an important point. Be sure to tell the doctor your symptoms, and make sure that your doctor writes them down.

Your medical records - the doctor's treatment notes and progress notes - are maintained to keep track of your medical care, as a tool to assist your doctor with your treatment. Those notes are not created to be used for the purpose of establishing a disability claim. However, your medical records are the principal evidence for your Social Security disability claim, and the symptoms listed in your records will be used by the Social Security Administration to assess your work-related limitations.

In general, doctors do not focus on how your symptoms affect your daily activities. You should tell your doctor about your symptoms and how they affect your life. This information will help your doctor better understand your medical condition. The resulting medical record may also help your disability case, since your symptoms and their effects on your activites will end up in the doctor's progress notes, and those notes will be used by SSA to establish your work-related limitations.

Be specific. Instead of saying to the doctor "my back hurts when I stand too long," say "after 15 minutes of standing my back hurts so much that I have to sit down for 15 minutes." Give the doctor some specific details to describe the effects of your medical condition. The same is true for mental limitations, such as depression or anxiety. Rather than saying "my depression is a little better (or a little worse) this month," say "I was so depressed that I could not leave the house for 6 days last month." Give your doctor some specifics. And make sure the doctor writes it down.

Medical Source Statements vs. Functional Capacity Evaluations

I send a medical source statement to the claimant's doctor in pretty much every case, because it is the most powerful evidence available of the claimant's functional limitations. Social Security's rules put the opinions of treating physicians at the top of the hierarchy of medical evidence. See 20 CFR 404.1527(d) and Social Security Ruling 96-2p. A good medical source statement is often the difference between winning and losing a disability claim. I cannot overstate its importance.

Now, doctors are busy, and primary care doctors are very busy, and in general they do not like completing these forms. They are not paid for it, either. But lately I have noticed an uptick in doctors avoiding the task of completing the form by saying that it requires a functional capacity evaluation (FCE). 

Functional Capacity Evaluation

A functional capacity evaluation is performed by a physical therapist by actually physically testing the patient. FCEs have become a big business. The inherent flaw in the FCE process, however, is that physical testing for a day or two cannot reliably predict what the patient can do on a regular and continuing basis in the workplace. Drawing conclusions about residual functional capacity from an FCE is closer to voodoo than science. 

Social Security's medical source statement form does looks like it requires a FCE, because it has precise categories for lifting and carrying, standing and walking. So you can see how a misunderstanding could develop at the doctor's office about the nature of the form. But sometimes, the FCE issue is just a convenient excuse to avoid completing the form. 

An FCE can help your case, but not the way a medical source statement can. An FCE is not from your treating physician, so it is not entitled to the deference of 20 CFR 404.1527(d)(2). It may not be from a physician at all, so you now have a non-acceptable medical source issue. See 20 CFR 404.1513.

Most importantly, a functional capacity evaluation does not address the critical issue of what the claimant can do on a sustained basis. An assessment of what you can do on a given day has little to do with what you can do day after day or week after week. The FCE doesn't tell you that, and that's what an residual functional capacity must determine. See Social Security Ruling 96-8p.

Get a Medical Source Statement instead

What the medical source statement requires, as the name implies, is a doctor's opinion - a medically informed opinion about what the claimant can and can't do. Knowledge of the patient's medical condition and common sense are all that is required.

By the time someone from the doctor's office calls me to say that an FCE is required to complete the medical source statement, it is usually too late to persuade them otherwise. I deal with this situation now by involving the client. I tell the client that the doctor will not complete the form, and would they please take the blank form with them to their next doctor's visit. At the next visit, with the patient right there in front of the doctor, the form is usually completed. But if you are not careful, a hearing can be scheduled before the next doctor's appointment, and you can miss the opportunity for this type of patient intervention.

What is the solution?

• This issue requires outreach to physicians. I mention it whenever I talk to a doctor, but I don't talk with doctors that frequently. I would like to address local meetings of physicians to spread the word. The issue is too important to just let the situation get worse.
• I always thank the doctor when I get a form back. I think positive reinforcement helps.
• I may start paying to have the form completed, and simply send a check for $50 to the doctor's office with the blank form. But this cost gets passed on to the client at the end of a successful case, and I am reticent to make this my standard practice.
• I am considering abandoning the Social Security medical source statement form, SSA form HA-1151-BK. I mean let's face it: the form does look like it requires a functional capacity evaluation. I may create a different form, or request more narrative reports from doctors. Narrative reports take more of a doctor's time, and are correspondingly difficult to obtain, but at least there is no easy excuse to avoid giving an opinion.

I would welcome your suggestions. What do you do to obtain medical source statements? Please leave a comment.

Doctor's Treatment Records and Disability

In a recent post entitled Treatment Records, New York disability attorney Jeffrey Delott stated:

Treatment notes basically serve as a way to remind the physician of things she or he may need to remember at a follow up visit. Many relevant physical exam findings are not included either because, for example, they may have been previously reported and would be redundant, are obvious such as walking with a cane, or are implied, such as trigger points for fibromyalgia. Claims adjudicators frequently try to deny a claim by relying on treatment notes’ omissions as evidence that a person lacks “objective evidence” to support a claim. Therefore, it needs to be pointed out that treatment notes do not serve the same purpose as a narrative or other disability report, which is why they may appear different.

Mr. Delott is right. A doctor's progress notes are maintained to keep track of the patient's medical care. They are not created for the purpose of establishing disability. That is why a doctor's progress notes alone are often not sufficient in a Social Security disability claim. An opinion from the doctor is often required. And the doctor's opinion may assess limitations that are not noted in the patient's treatment records. That is not unusual, because the treatment records have a different purpose than a doctor's opinion letter or medical source statement.

Be sure to tell your doctor about your functional limitations, and hopefully those limitations will find their way into the doctor's progress notes. But you should understand that your medical records alone may be insufficient to establish the functional limitations that Social Security uses to assess your claim.

A Doctor or a Lawyer for your disability claim?

I recently came across this website for two Florida chiropractors who are holding themselves out as Social Security disability specialists representing Social Security disability claimants nationwide.

The site repeats this statement several times: The Social Security Administration requires that, "You must prove the MEDICAL condition, NOT the legal reason why you cannot work." The clear implication is that a doctor would be a better choice than an attorney to handle a Social Security disability claim. 

I must disagree. Here are 7 quick reasons why:

1. Proving your medical condition is just the beginning of a successful Social Security disability claim. You must then prove that your medical condition either meets a listed impairment or prevents you from working. (see Social Security's sequential evaluation). Either approach requires interpreting Social Security's extensive regulations and rulings, which is squarely the province of a lawyer.
2. A Social Security claim requires one to develop a winning theory of the case and then develop evidence in support of that theory. Legal training is central to these tasks.
3. Representing a claimant requires determining how the detailed Social Security regulations interact with the unique facts of a particular claim. Applying the law to the facts of a case is what lawyers do.
4. A Social Security claimant's representative must persuade the decisonmaker that the claim should be granted. Persuasion is what lawyers do.
5. I write a prehearing memorandum for every case, explaining to the judge why the claim should be granted under Social Security's rules. Lawyers are trained writers.
6. The judge is a lawyer. Who do you want sitting next to you at the hearing?
7. Should your claim be denied at the hearing level, you can appeal to the Appeals Council and, when necessary, file suit in U.S. District Court. You won't see any doctors there.

That's the first 7 reasons that came to mind. I am sure that there are others. If you have another reason, or if you disagree, please leave a comment.

SSA Form HA-1151

A medical source statement is an important piece of evidence in a Social Security disability claim. The opinion of your treating doctor regarding your functional limitations should be given controlling weight by the SSA, if the opinion is not inconsistent with the other substantial evidence in the case record. 20 C.F.R. 404.1527(d)(2).

Social Security has a form, entitled Medical Source Statement of Ability to do Work-Related Activities (Physical), for a treating doctor to give an opinion regarding a patient's functional limitations for a Social Security claim. The form is not available on Social Security's website, and it is hard to find anywhere online.

Here is the version of HA-1151 that I use in my Social Security disability practice. Download form HA-1151.

Warning: be careful with this form! If your doctor gives Social Security an opinion regarding your limitations that still allows for employment at the sedentary exertional level, your claim could be worse off with that opinion than without it. It depends upon your particular situation. Do not have your doctor complete the form and blindly send it to Social Security. Get help from a Social Security disability attorney first.

Go to a Specialist

Colorado Springs disability lawyer Tomasz Satasiuk has published an article on his Colorado Social Security Law blog entitled Should I see a specialist when applying for Social Security Disability?

Tomasz and I agree that the answer is: YES!

Depending upon your impairment, a specialist's opinion can be very important both for your medical care and for your Social Security disability claim.

Three particular situations come to mind:

1. If you suffer from fibromyalgia, it is very important to get that fibromyalgia diagnosis from a rheumatologist. The American College of Rheumatology sets forth the diagnostic criteria for fibromyalgia. There is a world a difference between a rheumatologist's diagnosis of fibromyalgia and your primary care doctor's diagnosis of a "fibromyalgia-like syndrome."
2. If you have Lyme disease, you should see an infectious disease specialist who specializes in Lyme disease. Such expertise is very important both for your medical care and for your disability claim.
3. If you suffer from a mental impairment (such as anxiety, depression or bipolar disorder), it is very helpful to have a psychiatrist or psychologist involved in your medical care. In my view, if your family doctor is the only one treating your severe anxiety and depression, you will have problems with your Social Security disability claim.

That's just three situations that come up over and over again in my practice. There are certainly others.

In addition to more focused medical care for you, a specialist's opinion is given greater weight by the SSA. See 20 C.F.R. 404.1527(d)(5).

A Medical Source Statement Helps with Social Security Disability

This question brought a recent visitor to this blog: Does a medical statement from my doctor help with social security disability?

The short answer is YES! A medical source statement from your treating physician regarding your functional limitations is usually the most powerful evidence available for a Social Security disability claim.

It is not just common sense that your treating doctor knows you best. Social Security regulations (see 20 C.F.R. 404.1527(d)(2) and Social Security Ruling 96-2p) state that your doctor's opinion, in ordinary circumstances, is more important than the opinions of other doctors who may have examined you just once, or not at all.

A medical opinion from the treating doctor is so important that when I receive one, I write a handwritten note to thank the doctor for taking the time to complete the medical source statement. I actually have special stationery for this. I want to let the doctor know just how important the opinion is for the patient's disability claim, and how much the effort is appreciated. I do this because medical source statements win claims.

VA doctors should complete Social Security forms

A medical source statement from your treating doctor is a crucial piece of evidence for your Social Security disability claim.

Veterans applying for Social Security disability often receive all their medical care through the VA. It has been a challenge (to say the least) to get VA health care providers to complete Social Security assessment forms.

As an example, look at the letter I received from the Manchester VA hospital after asking the treating PA to complete form HA-1151-BK, which is the official Social Security form for a medical source statement of ability to do work-related activities (physical). The VA letter basically says "It is not our job to do these forms."

Well, the VA has a new directive explaining that VA policy requires medical providers to complete medical assessments for their patients. The directive states that VA providers are required "to honor requests by veterans for assistance in completing non-VA forms regarding their current health conditions and functional impairment." The directive expressly lists Social Security forms among those that must be completed by VA medical providers.

Hat tip to San Francisco Social Security attorney Geri Kahn at the California Social Security Lawyer Blog for writing about the VA's new directive. Geri's post is appropriately titled "Veterans may now find it easier to get their providers to fill out Social Security forms." 

Reserved to the Commissioner

Certain findings in a Social Security disability case are reserved to the Commissioner. Particularly, the determination of whether or not your are disabled is reserved to the Commissioner. See 20 C.F.R. 404.1527(e). Therefore, your doctor's opinion that you are disabled in given no special significance by the SSA.

Ruling 96-5p gives five examples of issues that are reserved to the Commissioner:

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  1. Whether an individual's impairment(s) meets or is equivalent in severity to the requirements of any impairment(s) in the listings;
  2. What an individual's RFC is;
  3. Whether an individual's RFC prevents him or her from doing past relevant work;
  4. How the vocational factors of age, education, and work experience apply; and
  5. Whether an individual is "disabled" under the Act.

The theory is these are administrative findings that would direct the determination of disability, and must therefore be made by the SSA. In practice, however, it is terribly frustrating to have a treating doctor's opinion dismissed by a DDS examiner because the issue is reserved to the Commissioner.

To maximize the importance of the treating doctor's opinion, a Social Security disability attorney will ask your treating doctor for specific opinions regarding the nature and severity of your impairments. These opinions are usually expressed in a Medical Source Statement from the treating doctor. This opinion must be given controlling weight by Social Security, as long as the opinion is well supported, and not inconsistent with the other substantial evidence in the case record.

More on the topic of controlling weight soon.

Your Doctor's Opinion

When the SSA receives your initial disability claim, it reviews your medical records, and determines your RFC. The problem with this approach is that the SSA does not obtain your doctor's opinion about your limitations. Rather, the SSA reviews your medical records and makes its own determination. 

The SSA's approach was described in a recent post on Tim Moore's My Disability Blog:

Social security never sends an RFC form to an applicant's own doctor. Instead, they have one of their own doctors---referred to as a medical consultant and assigned to a case processing unit with disability examiners---complete the RFC.

The problem, of course, is that a doctor's treatment notes are intended to manage a patient's medical care, not to establish the functional limitations that Social Security uses to evaluate a claimant's ability to work. As a result, the method used by Social Security to evaluate disability often results in a denial of the initial claim.

To remedy this situation, it is very important to obtain your doctor's opinion regarding your physical and/or mental limitations, and how those limitations affect your ability to work.  A medical source statement from your doctor setting forth your limitations due to your impairments is usually the most powerful evidence in support of your disability claim.

For more information on this topic, read Tomasz Stasiuk's excellent post The One Element Missing in Most Social Security Cases: A Medical Opinion of Limitations on his Colorado Social Security Disability Law blog.

Acceptable Medical Sources

Social Security defines by regulation the "acceptable medical sources" that can establish your medically determinable impairments and their severity. Physicians and psychologists are of course included. So are optometrists (only for matters of visual acuity and visual fields) and podiatrists (only for impairments of the foot). 

Notably, licensed clinical social workers, counselors and therapists are not included. Chiropractors are not acceptable medical sources. Neither are nurse practitioners or physician's assistants. This can pose a problem for the disability lawyer developing the claim.

The purpose of a medical source statement is to establish your work-related limitations. Your claim is stronger if the statement comes from an acceptable medical source, because the judge must give it controlling weight, unless the judge goes to quite some effort to discount the opinion using the factors described in 20 C.F.R. 404.1527(d).

However, sometimes a statement from a "non-acceptable" medical source is all you are going to get, because that provider is the only person the client has been seeing for medical care. Social Security Ruling 06-03p states that an opinion from a non-acceptable source may be persuasive evidence of the severity of your medical condition, and the limitations imposed by your condition. However, a non-acceptable source cannot establish a medically-determinble impairment.

The Medical Source Statement

A medical source statement is an opinion from your doctor regarding the nature and severity of your limitations due to your medically-determinable impairments. A medical source statement is often simply a form that is completed and signed by your doctor. The name derives from a section of the regulation describing medical opinion evidence.

The SSA must give controlling weight to a your treating doctor's opinion, if it is well supported by the evidence in the case record. This deference given to the medical source statement makes it very important for a claim.

Quite simply, a medical source statement is the most powerful evidence that a lawyer can develop for a Social Security disability claim. 

{update: here is the medical source statement (physical) form that I use in my practice}

Tell your Doctor

Your medical records - the doctor's treatment notes and progress notes - are created to keep track of your medical care, as a tool to assist your doctor with your treatment. Those notes are not created to be used for the purpose of establishing a disability claim. However, your medical records are the principal evidence for your Social Security disability claim, and they will be used by the Social Security Administration to assess your work-related limitations.

In general, doctors do not focus on your functional limitations. So it is important to tell your doctor what your limitations are. It will help your doctor better understand your medical condition. It may also help your disability case, since eventually those limitations will end up in the doctor's progress notes, and those notes will be used by SSA to establish your work-related limitations.

Instead of saying "my back hurts when I stand too long," say "after 15 minutes of standing my back hurts so much that I have to sit down for 15 minutes." Give the doctor some specific details to quantify your medical problems. The same is true for mental limitations, such as depression or anxiety. Rather than saying "my depression is a little better (or a little worse) this month," say "I was so depressed that I could not leave the house for 6 days last month." Give your doctor some specifics.