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.