The goal of this discussion is to review the underlying requirements of the Social Security Act’s disability programs and how they impact on the interaction between physician and patient. Suggestions for both patients and doctors will be included.
Disability Law Review
The Social Security Act includes two basic disability programs for persons whose medical problems make sustained work activity impossible. The legal definition of “total disability” for these benefits requires proof of medical problems producing symptoms so severe that for at least 12 months any type of substantial gainful work activity is not possible. The Claimant/patient must medically prove the inability to perform basic work activities on a sustained basis. For most claims, that means the inability to sustain even sedentary work activity.
Vocational realities are generally not relevant for Claimants less than 50 years old. Whether the patient could do past work, whether she could get a job, or is insurable, or could function at jobs that pay a living wage, are factors that generally are not determinative in Social Security claims. At 50 years old age becomes a consideration, especially for persons who do not have a GED education, or who have only done physical, unskilled work in the past fifteen years.
Proof Comes From The Treating Doctors
With hundreds of thousands of applications filed and pending, the law requires that the proof in these claims begins with the objective medical findings in the treating physician’s office chart. After that, the subjective complaints and written opinions of the treating physicians are weighed. The focus is on the medical proof related to the ability to function, not on diagnosis.
These are medical cases, focusing on medical proof of medical problems that severely limit the ability to “do” basic work activity on a sustained basis. Simply stating that someone is “disabled” is meaningless without the clinical signs, symptoms, findings and medical opinions to support that conclusion.
The primary proof in any case comes from the treating physicians and this is where the issues become complex.
One common problem in any disability claim is incomplete patient charts. Office notes are often given more evidentiary weight than narrative reports because they are made contemporaneously with the office visit and are considered more reliable. Claims are denied if those notes do not accurately reflect the extent of the limitations. Doctors whose charts are abbreviated, incomplete, or illegible end up harming their patients’ ability to get this minimal assistance.
Doctors are trying to help and are looking for signs that their treatment plan is providing relief. Their hope is to ameliorate symptoms and increase the patient’s ability to function. These programs, however, are asking for proof that the patient is totally disabled and will be remain so for at least a year. In practice, therefore, the examining physician must document both the improvements, and the ongoing symptoms and limitations clearly in the chart.
Doctors are obviously faced with economic realities. The time allocated to each patient is limited. Many unemployed patients have poor or no health insurance coverage and cannot purchase expensive tests, or even their basic medications! Creating extensive office documentation, completing reports, filling out forms, and responding to incessant written inquiries, was not part of the expected doctor-patient relationship and the impact on professional time is significant.
Aggravating this tension between treatment goals and the demands of the law, there is also the generalized stigma from the doctor’s experience with workers compensation and personal injury claims; i.e., is there an element of secondary gain; is this patient exaggerating just to get a monthly check?
Communicate: Focus Upon The ‘Truth’
Patients must realize that doctors do not practice medicine simply to write reports and fill out forms — these are time consuming and often require the doctor to provide evidence on issues which contradict what the doctor is hoping to accomplish with the patient. Sometimes doctors cannot answer the specific questions asked on the forms, and, sometimes, doctors just feel that their patients do really retain the ability to work. Patients must be willing to discuss these issues openly with their doctors, and not become frustrated if the physician feels progress is being made and a return to the workforce is possible.
Alternatively, doctors must acknowledge the reality of their patients’ lives. If the patient cannot work then the doctor has to be willing to document that opinion. This will require appropriate office charting, and the completion of forms or a narrative report. If the doctor feels the patient can work, or is malingering, then they must explain that opinion to the patient so that the focus can switch to treatment and the return to work as soon as possible.
These benefit programs do not provide much more than minimal cash assistance and access to the health care system, however, those small benefits often prevent homelessness, allow for continued medical care and provide opportunity for recovery and return to work.
Patients must be completely open with their treating doctors about the severity of their problems. Often patients respond to the doctor’s basic inquiries with an “I am OK.” That is usually not the truth for a patient whose medical problems are totally disabling. Patients who ask their doctors to provide disability reports need to be completely forthright regarding their symptoms and limitations. The doctors cannot report what they do not know from their patients. Further, doctors cannot treat appropriately if the patient is not truthfully and thoroughly describing their symptoms.
The reality is that a doctor’s office notes are not her own. Insurance companies, government employees and often disability analysts are going to read them. The more detailed the examinations, and the more thorough the notes, the more accurate the determinations made by these other agencies.
This is especially true for patients suffering from symptoms not easily demonstrable by objective testing. Conditions such as Chronic Fatigue Syndrome, Fibromyalgia, Reflex Sympathetic Dystrophy, Migraines, Lupus and the fatigue from Multiple Sclerosis and Hepatitis C are not easily proven. Social Security will take a “longitudinal” view of the medical history and records, searching for a consistency of complaints with whatever objective findings are present given the nature of the disease. If the pattern is consistent there is much greater likelihood that the patient will be perceived as honest and really in need of assistance.
The treating physician, particularly the specialist, is the key in the disability application process. Unfortunately, it forces both the treating physician and the patient to focus on the negative aspects of the patient’s health. However, those limitations are often part of the truth, and often preclude the ability to work on a sustained basis. Patients must be totally honest with their doctors about how they really are feeling. They also need to keep their long-term focus on recovery. Finally, they have to be considerate of the doctor’s professional time constraints and recognize the burden of report writing and form completion.
Doctors need to be aware that their charts must be thorough, legible and accurate with regard to the clinical findings and their significance regarding function. This “communication” between physician and patient should be useful not only in disability analysis, but also in the doctor’s treatment considerations. Physicians also need to be willing to provide the evidentiary support needed to get patients this aid. Relieving at least some of the financial stress, and making certain patients have some type of insurance, can allow patients to redirect their energies to their treatment protocols.
The better the communication in the doctor-patient relationship the greater the likelihood that both the short term needs of the patient for disability benefits will be met, and the long-term goals of both parties for recovery will be achieved.
This article was written by Jeffrey Rabin, an attorney in the Chicago area who has been representing disabled Claimants nationwide at all levels of the Social Security Disability claims system for more than 20 years. Mr. Rabin can be reached via email, or toll free at 888-529-0600.