The Social Security Disability process is complex, unlike any other type of disability application process that a physician may have helped a patient through. Social Security Disability (SSD) is usually a last resource for people. Affected patients are often individuals who do not have workers' compensation or private long-term disability policies. Without SSD benefits, they may lose the ability to keep their residences, fill prescriptions, and/or buy enough food to sustain themselves and their families.
This article will explore how neurologists can ensure that their patients do not face such grim scenarios. The physician's role in this area can be critical, and absent a history of treating disabled patients applying for disability benefits, it is unlikely that most physicians will be sufficiently familiar with the unique requirements of the Federal system to effectively assist their patients to be found disabled. We will emphasize what physicians can do to show the Social Security Administration (SSA), including the Administrative Law Judges (ALJ) who are often the final decision makers, what is needed to determine in their patient's cases in order to find someone disabled. At first glance, a doctor may think some of these suggestions are excessive or tedious, but a close reading will show how necessary the suggestions are.
THE STATISTICAL DIFFICULTY IN OBTAINING DISABILITY BENEFITS
Social Security Disability benefits are incredibly difficult to obtain. For fiscal year 2007, according to the Social Security Administration, over 65 percent of applicants were denied benefits at the initial level. At the next step of appeal, Social Security has reported that 87 percent of applicants were denied on reconsideration. As a result of this high denial rate, many individuals become discouraged, let their appeal rights lapse, and abandon the benefits to which they may well be entitled. Working with their patients' attorneys, physicians can help to defy and beat these daunting odds. Accordingly, for claimants to succeed, their attorneys must make cogent and medically supported arguments to the Social Security Administration. Absent strong and detailed medical records and assessment forms, the attorney's effort will likely be futile.
STANDARD OF DISABILITY FOR SOCIAL SECURITY
Disability examiners are experienced in analyzing a patient's disability, body part by body part. Often, a disability impairment rating is required for each particular area of the body involved. Most disability examiners are also experienced in determining if the patient is able to return to his/her most recent job. Social Security standards are much different. The Social Security Administration does not recognize impairment ratings for a particular area of the body. Nor does the Administration generally care that a person cannot return to his/her past relevant work. Rather, Social Security defines disability as the "inability to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than twelve consecutive months." (20 C.F.R. @ 404.1505 AND @416.905.) Essentially, substantial gainful activity has come to mean full-time work. Therefore, physicians must determine whether their patients are unable to perform any full-time job, not just their last type of employment.
If a person has reached age 50 and has a history at an occupation other than sedentary in exertion, they may be able to be found disabled if they can only perform sedentary work. This would only be the case if they lack skills from past work that would transfer into a sedentary job. To not have transferable skills, it helps to have little education and an unskilled job. In the world of SSD, the more marginal the education the better.
It is also important to recognize that the SSA does not recognize other agencies' awards of disability, such as those of the Veterans Administration, a long-term disability policy with a private insurer, or an employer disability pension. The Judge must make note in his/her decision of such an award but need not give this other award controlling weight.
If a claimant is awarded benefits he/she may be eligible for health insurance. If a person has had a good work history and therefore is a recipient of SSD benefits (essentially working five of the past 10 years before they became disabled), they will be eligible for Medicare 29 months after the onset date of disability. If a person has medically qualified for Supplemental Security Income (a poor recent work history and low income and resources), that claimant will receive Medicaid benefits upon award of SSI.
THE NEED FOR DETAILED MEDICAL RECORDS
One of the most critical contributions a treating physician can make to a person seeking disability benefits is completion of accurate and detailed notes. When initially reading through a physician's chart, Social Security looks for the presence of an impairment. Physicians need to include in their records every seemingly significant complaint that a person has vocalized. Whether it be cardiac, orthopedic, or mental, the type of impairment needs to be memorialized. This is critical, because patients may be found disabled by a combination of impairments, not just one.
Once a diagnosis has been rendered, the physician should memorialize how the conclusion was reached. Disability judges always want to see objective evidence as a means to a diagnosis. For orthopedic disorders, a MRI or CT scan should have been administered. If the condition is rheumatological in nature, Anti Nuclear Antibodies (ANA), sedimentation rate, and/or C-reactive protein levels can be instructive. When evaluating a mental impairment, a WAIS, Beck depression scale or MMPT may be useful and necessary for a complete record. When faced with a confirmatory diagnostic test, a judge must acknowledge the existence of an impairment and a rational explanation for an individual's corresponding symptomatology.
Once it is established that a person has an impairment, the doctor's work is not nearly complete. Symptoms are the next thing that a doctor must relate in his/her notes. It is simply not sufficient to indicate that a person has an impairment. Symptoms such as pain, as well as the location, frequency and the factors that cause/exacerbate the pain can be equally as important as weakness, numbness, reduced mobility and fatigue, and are critical to proving a disability claim.
Mental impairment cases usually require much greater detail than physical ones do. This is because until brainscans showing chemical corruptions of the brain are commonplace as evidence of mental diseases, the objective evidence is often difficult to detail. Whether the patient is suffering from crying spells, hallucinations or suicidal ideations, it is necessary to include them in all records. Most times this is not an issue for a psychologist or a therapist, however, psychiatric notes too often contain only information on a medication review. Even if, in reality, 90 percent of the psychiatrist's role in his/her care of a patient is the medication check, the information gleaned from the other 10 percent of the visit is now essential for inclusion in the patient's medical record.
The terms "improvement" or "feels better" appearing in a patient's medical records are blood in the water to draw judges. When improvement is noted, it is essential that the doctor include a caveat about how much improvement has, in fact, been realized. If the improvement has taken an individual from sitting up in bed one hour a day to two hours, this improvement is not commensurate with an ability to return to work. That a person feels better at an appointment than they previously had, does not necessarily indicate that a person can return to work. However, judges often interpret "improvement" that way. When remarking on a patient's physical condition following surgery, there is a perception that physicians, at times, limit their remarks to those necessary to document the propriety and result of the procedure. While certainly a legitimate concern, especially in the current legal climate, adhering to that concern alone will not allow for the extrapolation needed to result in a winning disability case.
Notes after surgery may read: "Incision site healed" or "Bone graft successful" or "Feels better." While the surgery may have been a "success" in accomplishing the stenting of an artery or fusing of discs, that usually does not mean that the patient has been fully healed. Additionally, what do the words "feels better" mean? Better than what? Are they now completely asymptomatic? Whenever a doctor writes a note about a successful surgery or simply of general improvement, the physician should include that while improvement has occurred, the patient is still suffering with substantial limitations. If a physician can include in his/her notes language that is as specific as possible—something to the effect that: "While the incision site has healed, patient continues to suffer a significant amount of soreness"—it will be helpful. If a physician remarks that a person has experienced some post-surgical improvement but the patient still is in a significant amount of pain, their patient's claim will be strengthened. Medical improvement is not the patient's enemy from a disability perspective, but improvement without a reference point as to what problems still exist surely is.
FUNCTIONALITY: THE KEY TO DISABILITY
The most critical area where physicians can assist their patients' chances of being awarded disability benefits is to write extensively on their patient's functionality. For Social Security purposes, the notion of functionality refers to what the person is able to do despite, or because of, their medical impairment.
Disability judges often gauge what a person is able to accomplish in his/her home on a daily basis to guide them in formulating their Social Security decision. Therefore, notations on a patient's pain or weakness alone are usually not sufficient to give a judge an idea how those symptoms impact on activities of daily living (ADLs) or other everyday aspects of the patient's existence.
ADLs include cooking, cleaning, self-care, shopping, laundry, washing dishes, taking out the trash, etc. It is rare to read a doctor's treatment notes and find many remarks regarding ADLs. While it is even less likely that patients share such information with their physicians, when a doctor knows that their patient has applied for disability, comments regarding a patient's ability to perform ADLs are most helpful. When ADLs are mentioned in a doctor's notes, it should not be left to "functionally independent in performance of ADLs."
If a patient is able to perform certain ADLs, it would be helpful if the following situations could be addressed:
- If a patient performs an ADL, are they limited thereafter as a result of the performing the activity? For example, if the patient sweeps a room in her home one day, does she become so fatigued that she must lie down for a period of time or possibly develop so much pain that she cannot easily get out of bed the following day?
- How often a person is capable of performing an ADL. For example : A patient's herniated disc-related back pain only allows her to do laundry when she is down to her last pair of clean undergarments, or she is only able to shower once per week because her depression causes her to have little or no care for her appearance. Such sporadic activity clearly is not commensurate with working at a full-time job.
Functionality is not limited to ADLs. Another important aspect of one's ability to function is the capability to sit, stand, lift, and walk. Obviously, in order to perform most occupations, one is required to function effectively and consistently throughout a standard eight-hour workday. The four aspects of the sit/stand/walk factors most relevant to disability cases are:
- How long can the activity be maintained continuously?
- What amount of time can this activity be engaged in over an eight-hour day?
- How far can the individual walk?
- What accounts for the patient's limited capabilities?
What makes the recording of the sitting, standing, and walking capabilities so critical is the judge's need to determine whether a person can do any of these, either singularly or in combination for eight hours per day, five days a week, in a normal competitive work environment. Therefore, if over the course of treatment, it is not readily apparent what durational capabilities a person has, at the very least, the difficulties a patient may have doing any of these activities must be noted. As always, recording the rationale for those difficulties will greatly aid the patient and the judge.
Also of importance in determining a patient's functionality is the affect a patient's impairments have on his/her ability to sleep. Does pain cause interrupted sleep? Does depression relegate the patient to sleeping day and night? Whenever a judge learns that an individual naps during the day, it tells the court that the ability to complete a normal 9-to-5 working day is potentially affected. The rationale provided by the treating physician for nocturnia or somnolence can be most enlightening.
One of the most prominent factors affecting one's functionality is side-effects from medication. In fact, there are many cases where side effects of the medication may be just as limiting as the impairment the medication is being administered to cure. One of the most prominent side effects-inducing class of medications that disabled individuals use are the narcotic pain relievers. People taking medications such as Percocet or Oxycontin often suffer an incredible amount of both fatigue and confusion. Another class of medications with a large incidence of side effects is the psychotropics. Again, fatigue, seems to be the most common side effect. A doctor need not delve into minute details regarding confusion, fatigue, or any other side effect. It is generally sufficient for the physician to indicate that side effects are present for judges to take them seriously. Of course, this can often be a situation where a patient has not been forthcoming with their physician as to the side effects they have experienced. That means that the physician must solicit this information to help their patient.
A common scenario we see is the patient in a disability hearing testifying that a medication makes him/her so groggy that s/he could never concentrate long enough to perform a job. The judge asks if they shared this information with their doctor, because there is no notation in the record. The individual responds that s/he has not, and the judge determines that the side effect does not exist. If the issue is not in the physician's treatment records, the patient has essentially waived the right to testify about it at a hearing.
Often patients are unable to utilize all available treatments. For example, perhapsan individual cannot take a class of medications because of side effects. Hypothetically, a person with reflux disease develops an orthopedic impairment. The doctor may want to prescribe a Non-Steriodal Anti-Inflammatory Drug to alleviate orthopedic symptoms. However, once the doctor is alerted by the patient that after trying several NSAIDs his/her reflux flairs with each one, the physician can no longer safely prescribe such a medication. This type of sequence needs to be included in treating physicians' records. While judges recognize the frequent incidence of side-effects between patients with reflux and NSAIDs, unless they see it in writing, they will not presume it to be the case with a particular individual.
Another type of treatment that can be contraindicated is surgical intervention. It seems every judge that sees an individual with a disc herniation or nerve impingement thinks that if the individual has not undergone surgery, then his/her condition must not be disabling. Obviously, this assumption is often wholly incorrect. A patient can only have this rectified with their physician's assistance. Treatment records should reflect the reasons why surgery is contraindicated. One reason may be that the chances of success are fairly remote. Another may be that the patient is diabetic and may have problems healing or cannot be medically cleared by their internist. Or perhaps the individual also has a generalized anxiety disorder and is afraid of surgery. Leaving the reason why a person has not had surgery up to a judge's speculation is often a deathblow to a case.
Of course, this list is not meant to be all-inclusive. Other factors that may impact one's functionality include appetite disturbance, intolerance to environmental exposures, postural limitations (bending, stooping, kneeling, crouching, crawling, climbing, balancing, reaching), and stress. In short, if there is something about a patient's condition that has a significant effect on their life, it must be memorialized in his/her treatment records.
Once a physician has established a pattern of remarking on ADLs and functionality in their office notes, any later completion of a disability assessment form summarizing a patient's impairments will be held in much higher regard, as will a patient's testimony at the disability hearing. Information contained in the physician's records will support the additional information contained in both the subsequent forms and the patient's testimony.
DISABILITY ASSESSMENT FORMS AND NARRATIVE REPORTS
Shortly before the time of a disability hearing, a doctor is often sent a request to complete a disability assessment form (often referred to as a Residual Functional Capacity Form) and/or to complete a narrative. The disability assessment form can be the linchpin to winning a disability case, assuming the treatment notes support the physician's conclusions. Assessment forms must be completed by the physician. Little weight will be given to forms filled out by physician assistants, physical therapists, or registered nurses. These forms often ask such questions as: "How long have you treated your patient?"; "What is the diagnosis?"; and "What is their prognosis?"
A judge may use the duration of a doctor-patient relationshipto determine how well the doctor knows his/her patient. A significant body of caselaw holds that the longer the doctor-patient relationship, the more likely the judge should give the doctor's opinion substantial or even controlling weight. This is critical because Social Security often sends patients to "independent" examiners who after only brief examinations frequently conclude that the person is not disabled. Also, the prognosis aspect of this form is important because an individual must be found to have been disabled for at least 12 consecutive months or expected to be disabled into the future for a time period exceeding 12 months for an award of benefits to occur.
Often, the general disability assessment form asks questions that not pertinent to the patient. A common example occurs when a patient has lower extremity problems, yet the form ask questions as to hand limitations. Our suggestion: ignore questions on non-affected body parts. Do not feel pressured to answer every question on the assessment form. Some questions may well be irrelevant. By trying to answer the question anyway, the physician may diminish his/her credibility in the eyes of the judge.
Often treating physicians are asked to estimate the number of days that an individual would be absent if, hypothetically, they returned to a working environment. The following situation is an example of why estimating the number of days that a patient may miss per month is so crucial.
The patient suffers from grand mal seizures at a rate of three times per month. Each seizure is so debilitating that the patient needs to lie down for several hours in response to the seizure. Other than seizures, there is nothing inhibiting that individual's ability to work. Under Social Security's Regulations, three such seizures per month are likely to be considered disabling. Vocational findings in disability hearings generally suggest that if an employee can be expected to be absent more than two or three days per month, that individual is deemed unemployable. A patient with a depressive disorder may have a similar situation. That individual may only be markedly depressed twice a week. If so, that person is not employable; they may be able to obtain a job but would not be able to sustain it.
Often the most critical question a physician will be asked when completing an assessment form is the amount of time the patient can sit, stand and walk in an eight-hour day. In the majority of cases, if a treating physician writes that his/her patient can sit, stand, and walk for a total of eight hours, the patient will never be awarded disability benefits. The doctor has in effect determined that the sitting, standing and walking capacity are commensurate with a full day's work. Therefore, if the physician believes that there is no work possible for his/her patient, the total for sitting, standing, and walking should be less than eight hours. Of course estimating that a person can only sit for four hours a day and stand for two hours per day involves a certain amount of guesswork. Such assessments are not perfect science. However, your history of treating the patient provides you with special insight that will permit your opinion to be based on solid information, and it will usually be given proper credit.
Parsing through a disability assessment form, a doctor will quickly recognize that it does not leave room for copious information. This is yet another reason why notes that have preceded this form are so critical. The notes should be able to fill in gaps that may be left by the minimal amount of space the forms provide.
Some disability assessment forms, such as the Psychiatric Review Technique, have questions that will allow an ALJ to surmise that a person meets a SSD Listing. However, most often the only opportunity that a doctor will get to opine whether his/her patient meets a Social Security Listing is by way of written narrative. If a patient's attorney asks a doctor to determine if the patient meets a "listing," the attorney must provide the doctor the tools to determine what a "listing" is in general and what particular "listing" the attorney believes applies to the patient.
The Listings are a series of medical conditions recognized by the Social Security Administration as presumptively disabling. If, in the treating physician's opinion, a patient meets one of these definitions—that is, has met all the requirements exactly as described in Social Security's medical guidelines, the individual likely will be found to be disabled.
It is not necessary always to complete the medical assessment form. If a physician would rather provide all the requested information in a narrative form, that is perfectly acceptable. What else should a doctor be writing about when asked to do a narrative? Essentially, physicians should be briefly summarizing their notes while adding key factors that limit their patients' functionality and their resulting inability to work. For Social Security purposes, work is generally defined as eight hours/day, five days (40 hours)/week, in a normal, competitive work environment, without missing more than one day per month. Once those factors that limit an individual's ability to function are documented, it is essential that the ultimate conclusion follows—that is, whether in the physician's opinion his/her patient is disabled. Of course, when notations appear in the medical record reflecting that a physician believes that the patient is disabled from working, it is helpful to have surrounding language give a rationale and some indication that the physician knows what the standard of disability is for Social Security claims. This will bolster the physician's opinion in the eyes of the judge. While it is helpful to also see referenced to disability in general notes of the physician, it is not a prerequisite so long as some type of assessment/narrative can be completed before a hearing.
The following excerpt from a favorable decision is included to demonstrate the Court's reliance in these cases on the documentation provided by the treating physician:
The evidence of record establishes that the claimant's impairments could reasonably cause the symptoms and limitations alleged. In this regard, reports from "John Smith, MD", the claimant's treating orthopedic surgeon, document Mr. Jones's long history of chronic back and knee pain. He noted that he is currently taking Oxycontin for pain management. In a detailed medical assessment of ability to perform basic work related activities, Dr. Smith indicated that Mr. Jones was unable to sit for more than twenty minutes at a time, and lift and/or carry weights up to ten pounds more than occasionally. He further noted that he would be unable to stand or walk for more than one hour in a typical eight hour day, and never kneel, balance, stoop, crouch or crawl (Exhibits 17F, 19F). Accordingly, we find the claimant disabled.
As the American population continues to grow and age, the number of disability applications will continue to increase. The vast majority of people who come to attorneys for representation have applied for benefits reluctantly, and only when they sincerely believe that they are no longer capable of working. Usually, the benefits sought are only a fraction of what the individual would earn if they continued to be employed. Because Social Security's Regulations are complex and ever evolving, individuals who choose to represent themselves are at a distinct statistical disadvantage (40 to 50 percent approval rating in non-represented individuals v. 60 to 80 percent approval rating for those represented ). The focused, combined efforts of the applicant's physicians and attorney offer the greatest chance for success. Without the assistance of the cooperative physician's helpful documentation, the attorney's efforts on behalf of the disabled individual are not likely to succeed.
The Law Offices of Silver & Silver have been assisting disabled adults and children in obtaining the benefits for over 30 years. Because Social Security cases are federally regulated, we are able to assist with claims throughout the country. Please feel free to contact them with any questions at 1-800-94-SILVER or firstname.lastname@example.org.