The Treating Doc’s Opinion Is Key To Social Security Disability
As the treating physician, your opinion is vital to your patient’s Social Security disability claim. In fact, it may have “controlling weight” in determining the outcome of the claim.
Under a 1996 policy ruling (SSR [Social Security Ruling] 96-2p), a treating physician’s medical opinion which is well-supported and not inconsistent with other substantial evidence in the record is given “controlling weight.” That is, the judge must follow it.
Your medical opinion must address the nature and severity of your patient’s impairments. To be “well-supported,” your opinion must be based on medically accepted clinical and laboratory diagnostic techniques.
If your patient is disabled by the pain, fatigue or other symptoms of an underlying medical condition, your objective findings verifying his/her medical condition are particularly important. Your records must show that there is a medically determinable impairment that could produce the symptoms your patient claims are disabling.
Your opinion on your patient’s medically determinable impairment should address:
1. What the medical condition is;
2. The clinical and laboratory diagnostic techniques and/or objective findings forming the basis of your diagnosis of this condition; and
3. The severity of the limitations imposed by your patient’s medical impairment.
IT IS NOT NECESSARY TO SAY: “MY PATIENT IS DISABLED”
Your medical opinion should not address the question of whether your patient is “disabled.” Whether a person is “disabled” under Social Security law is an issue “reserved to the Commissioner” of Social Security (that is, the administrative law judge). If you simply state that you think your patient is disabled, the judge may view this as usurping his/her authority!
The question of whether your patient is “disabled” is a legal question not a medical question. Your opinion on this question will NOT be given “controlling weight.”
Instead, your opinion should address the severity of the limitations imposed by your patient’s medical condition. For example:
1. How long can your patient sit, stand or walk at one time and in a work day?
2. How frequently and for how long will your patient be distracted (lose concentration) or need to lie down due to pain or other symptoms?
3. Can your patient sit continually with both hands free for work? Or does he/she need to lean on one hand or arm to alleviate pain?
4. Is your patient capable of persisting and enduring through a full work day and work week in productive activity without deteriorating due to exacerbated symptoms after so many hours or days?
5. How many hours per day would your patient last? How many days per month would your patient lose from work due to symptoms exacerbated by the work effort?
NOTE: It must be your opinion. It is important to make it clear that you are expressing your own medical opinion and not just saying something that the patient told you.
Of course, you have no control over whether other evidence in the record is “inconsistent” with your opinion. However, you can be sure that your own opinions are consistent. If your opinion concerning your patient changes during the course of your treatment, be sure you explain your change of opinion.
If you become aware of medical opinions inconsistent with yours, explaining and contrasting your opinion based on your findings and clinical observations would be very helpful. Even if it is not accorded “controlling weight” under SSR 96-2p, your opinion is still entitled to great weight and deference as that of the treating physician.
YOUR NOTES WILL HELP THE JUDGE EVALUATE YOUR PATIENT’S CREDIBILITY
Cases where disability is due to pain and other subjective symptoms often turn on the patient’s credibility. As treating doctor for the medical condition causing the pain, your opinion on the genuineness of your patient’s pain complaints is very important.
If you believe your patient when he/she complains of disabling pain and other symptoms because they are consistent with your findings and observations, please say so.
If your patient complains of disabling pain or other symptoms, your records must show he or she has a medically determinable impairment that could produce those symptoms.
In making the credibility finding, the judge must consider the entire record. Your chart notes are among the most important parts of the record.
The judge must consider: the patient’s daily activities; the location, duration and frequency of symptoms; what precipitates and aggravates the symptoms; the amount of medication and the side effects; and what treatment is needed to alleviate the symptoms. As treating physician, your statements on these matters are very important.
In evaluating credibility, the judge will assess the consistency of your patient’s statements by comparing them with your records of the statements your patient has made to you.
Since symptoms vary in intensity, persistence and functional effect, and may vary with time, inconsistency in reporting symptoms will not always defeat credibility. The judge will look to your records for explanations of these variations.
For example, episodic reports of “doing well” and extreme flare-ups of incapacitating pain are best qualified as temporary. This will help the judge recognize these transitory phases in the context of the overall chronic condition. Otherwise, the judge may interpret a report of “doing well” to mean your patient has fully recovered, when that may not be the case.
You may record other relevant observations as well. For example, your patient may have expressed genuine frustration at not being able to return to work. During your extensive treatment, you may have observed your patient’s strong work ethic and motivation to recover so as to return to work. Noting these in your records will help the judge realize that the disability claim is not for the purpose of avoiding work.
Your opinion as treating physician not only carries more weight than the other medical evidence before a Social Security judge, but also your records are very significant in the assessment of your patient’s credibility.
This article was prepared by
Robert F. Webber and Peter E. Yeager,
based on an article which appeared in the Fall 1996
issue of this Medical-Legal Journal (Vol. 2).