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The patient is doing well.

I wish I had a nickel for every time I read that sentence in a progress note for a patient who is applying for disability benefits.

This statement (and similar language) in a patient’s medical records can cause problems in a disability claim, because it is routinely misinterpreted by those making disability determinations (whether or not it is wilfully misinterpreted is a separate issue). 

Saying the patient is doing well is relative. A patient who is no longer suicidal may be doing “well.” A patient who is no longer bedridden half the time due to chronic pain may be doing “well.” But neither patient may be able to work, let alone maintain competitive employment on a regular and continuous basis, as required by Social Security ruling 96-8p.

As a disability lawyer, you have to show the context for statements like this in medical records, each and every time. Same for statements like “patient is improving,” or “doing better.” Otherwise, you run the risk of an unfriendly ALJ latching on to those statements in the medical records to support an unfavorable decision.

Unfavorable decisions routinely cite such statements as evidence that the disability claimant’s functional limitations are not as severe as alleged. You have to make it as difficult as possible for an ALJ to do that, by providing context for these statements. 

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  • How do you typically provide that context for the judge? Do you address those portions of the record proactively in an opening statement or through testimony at the risk of drawing the judge’s attention to them (and thus inviting a misinterpretation that wouldnt have happened in the first place?). Is it overkill to ask the doctor who wrote the notes to clarify their context in an interrogatory?

  • Dan,
    Thank you for your comment.
    I provide context through the claimant’s testimony. My experience has been that a judge who is likely to deny a case has already noticed such comments in the treatment notes. It is standard practice these days. So it is important to clear the air. I never assume that the judge has not seen something in the record.
    If you can get the doctor to clarify the progress note, that is great. But that is usually easier said than done. I would spend my time trying to get a medical source statement from the doctor instead.