Questions and Answers for Physicians
The Social Security Administration (SSA) and attorneys for claimants routinely ask treating doctors to provide information and opinions about their patients’ impairments. This memorandum that I wrote for the doctors treating my Milwaukee Social Security disability clients answers questions doctors have about responding to such requests.
Why does a patient need the opinion of a treating doctor in making a Social Security disability claim?
According to the Social Security Administration, the treating doctor is the medical professional most able to provide a detailed, longitudinal picture of a claimant’s medical impairments. The treating doctor may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations arranged by the Social Security Administration or brief hospitalizations. 20 C.F.R. § 404.1527(d)(2). The Social Security Administration gives the opinion of the treating doctor special consideration. 20 C.F.R. § 404.1527, SSR 96-2p.
What information does the Social Security Administration need from the treating doctor?
According to the Social Security Administration, a treating doctor may be asked about the nature, severity, extent and duration of a patient’s impairments, including observations and opinions about how well the patient is able to function, the effects of any treatment, including side effects, and how long the impairments are expected to limit the patient’s ability to function. A treating doctor may be asked about the effects of impairments on the patient’s ability to function in a sustained manner when performing work activities and when performing activities of daily living. Such opinions help Social Security Administration adjudicators draw accurate conclusions about the severity of the impairments and the patient’s remaining capacity for work. 20 C.F.R. §§ 404.1513 and 404.1527, SSRs 96-2p, 96-5p, cf. 99-2p.
Isn’t an opinion about a patient’s capacity to do sustained work activities very subjective?
Yes. The Social Security Administration recognizes that Social Security disability claimants are limited by symptoms and that symptoms are subjective and difficult to quantify. 20 C.F.R. § 404.1529(c)(3). Symptoms cannot be measured objectively through clinical or laboratory diagnostic techniques. SSR 96-7p. According to the Social Security Administration, a doctor may be asked for an opinion about the nature and severity of a patient’s symptoms, what the patient can still do despite his or her impairments, and the patient’s physical or mental restrictions. Determining what a patient can still do requires the exercise of professional judgment first, to figure out whether the patient’s symptoms can be reasonably attributed to a medical diagnosis, and second, if a patient’s claimed symptom-related limitations are reasonably consistent with the medical signs and findings. 42 U.S.C. § 423(d)(5)(a), 20 C.F.R. § 404.1527 and SSR 96-8p.
To decide if claimed limitations are reasonable for a particular patient, should I consider whether the average person with the same impairment would be so impaired?
No. The Social Security Administration’s rules recognize that an “average man” test is not appropriate. The Social Security Administration acknowledges that symptoms limit some people more than they do others. The Social Security Administration offers the example of someone with a low back disorder who may be fully capable of sustained medium work activity, but another person with the same disorder, because of pain, may not be capable of more than light work activity on a sustained basis. 20 C.F.R. § 404.1545(e). Some people have less tolerance for pain. Some people’s ability to cope with an impairment is less than others. Individual differences need to be considered.
Should I refer the patient for a functional capacity evaluation?
Probably not. The Social Security Administration itself never asks a claimant to undergo a functional capacity evaluation. As a rule, functional capacity evaluations, which last at most only a few hours, do not reliably answer the essential question: What is your patient’s capacity to sustain work activities 8 hours per day, 5 days per week, 50 weeks per year? In many cases, especially for those under age 50, the crucial issue is a claimant’s capacity to perform an easy job such as full time sedentary work, which requires the capacity to sit for 6 hours out of an 8-hour working day, stand or walk intermittently for two hours per day, occasionally lift about 10 pounds and frequently lift lighter objects. Many functional capacity evaluations assign the capacity to do sedentary work by default. That is, they assume a sedentary capacity when work at higher levels of exertion is ruled out. To truly test a patient’s capacity to sustain sedentary work, the patient would need to be observed in work simulation for several weeks—something which would be very expensive.
Doesn’t a doctor need special expertise to estimate a patient’s capacity for performing work-related activities?
No. While the Social Security Administration considers a doctor’s expertise when weighing the doctor’s opinion, SSA does not require a treating doctor to have special expertise or training to provide a relevant opinion about a patient’s ability to work. The Social Security Administration says that a treating doctor who has developed a longitudinal perspective on a patient’s problems is in a position to make a valuable contribution to determining whether a patient is or is not disabled. It depends on the case, of course, but usually a treating doctor who has treated a patient for a long time can provide a more valuable opinion than a specialist who sees the patient only once. This is particularly true if the specialist sees the patient only for a disability evaluation rather than treatment. 20 C.F.R. § 404.1527.
How important are objective medical findings?
Objective medical findings are very important. Such findings, in effect, determine the range of possibilities. But, as a rule, one cannot determine a claimant’s capacity for working by looking only at the medical findings for a claimant whose impairment does not meet the Listing of Impairments, the Social Security Administration’s special set of medical findings discussed below. For example, the Social Security Administration itself acknowledged that there is a lack of correlation between x-ray findings and function of a joint. 66 Fed. Reg. 58,017 (2001). Researchers have concluded that there is no correlation between lumbar range of motion and disability. See Parks, et al., “A Comparison of Lumbar Range of Motion and Functional Ability Scores in Patients with Low Back Pain,” Spine, Vol 28, No. 4, pp. 380-384, 2003.
What is the best way to approach preparing an opinion about a patient’s capacity to do work-related activities?
Talk with your patient. Obtain your patient’s own opinion about his or her ability to do work-related activities. Exercise professional judgment to determine whether your patient’s stated limitations are reasonably consistent with what you know about your patient’s medical impairments and what you know about your patient.
Should I simply endorse whatever the patient says about his or her limitations?
No. Then there would be no exercise of professional judgment. And let’s face it, sometimes patients describe symptoms that cannot be reasonably attributed to a medical diagnosis or side effects of medication. Such symptoms should not be considered. And sometimes patients claim limitations so severe that they are outside the realm of possibility created by the patient’s impairments, medical findings, history and personality.
Functional capacity forms these days seem to ask for an inordinate number of details about a patient’s capacity for working. Is all this necessary?
The short answer is yes. The Social Security Administration requires a lot of detailed information about a claimant’s capacity for performing work-related activities. This is especially necessary for those cases in which hearings are held before administrative law judges where vocational experts may testify about whether jobs exist in significant numbers for claimants with certain limitations. Although we realize that not all questions on a form may relate to a particular claimant’s case, relevant details often make the difference between winning and losing a case.
Sometimes an answer to a question on a form is “it depends.” How can I convey this?
Explain it in the margins. The more information the Social Security Administration has, the better. The author of many such forms has commented that no form is ever complete without things written in the margins. But be sure to provide enough information so that the reader knows exactly what you mean. The Social Security Administration says that the better the explanation a doctor provides, the more weight SSA will give that opinion. 20 C.F.R. § 404.1527(d)(3).
My personal opinion is that virtually everyone, unless bedridden, ought to be able to do some sort of work, whether it be part-time work or work with accommodation such as using a wheelchair, etc. Is this a bias that I need to consider when I answer questions about my patient?
This opinion is shared by many claimants’ lawyers and judges who work in the Social Security disability area. It isn’t a bias. In fact, it provides a useful perspective that may produce the very sort of information SSA is looking for. If you think a claimant is limited to part time work, say so. If you think in order to work full time a claimant needs special accommodations, describe the necessary accommodations—e.g., a flexible work schedule, special allowance for missing work, extra work breaks to rest, the opportunity to lie down on a work break, work at home, etc.
In close cases I worry that I’ll inadvertently say the wrong thing or that I will harm my patient’s Social Security disability case if I describe my patient as capable of doing any work-related activities at all. Should I be concerned about this?
Probably not. The source of this worry oftentimes is the misperception that a patient needs to be virtually bedridden to be found disabled by the Social Security Administration. Although this is not the case, sometimes the best thing a doctor can do is telephone the claimant’s attorney to discuss the issues.
What is the worst thing a doctor can do when completing a Social Security disability form describing a patient’s capacity for work?
Describing a patient as more disabled than he or she actually is. It is worse than erring in the other direction because it tends to make the doctor’s opinion useless for determining whether the patient meets the requirements of the Social Security Act to be found disabled.
If I really think my patient can sustain work at a regular full-time job, should I fill out the form anyway? (I’d hate to have my patient charged for my work on this form if it will be essentially useless for the claim.)
It depends on the age of the claimant and the claimant’s attorney’s theory of the case. Because of age, especially if over age 50 or 55, some claimants can actually be capable of performing a surprising number of jobs and still be found disabled. It is also possible the claimant’s attorney is looking to document the impact of a few physical limitations to be used in combination with a mental impairment to establish eligibility. The claimant’s attorney will appreciate a telephone call from you before you fill out the form.
What is the definition of disability for the Social Security disability program?
Here are the elements of the definition of disability found in the Social Security Act. To be found disabled a claimant must have:
- a medically determinable impairment, that is, a physical or mental impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques; and
- which meets the duration requirement, that is, the impairment can be expected to result in death or it must have already lasted or can be expected to last for a continuous period of not less than 12 months; and
- which prevents the performance of past relevant work; and
- which prevents the performance of any other substantial gainful work that exists in the economy in significant numbers,
- considering the claimant’s age, education and work experience.
42 U.S.C. § 423(d). The definition of disability in the Act specifically provides that an individual is not disabled if drug addiction or alcoholism would “be a contributing factor material to the . . . determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C).
Is the definition of disability the same for the SSI program?
Yes, it is. The same definition of disability is used for SSI, the Supplemental Security Income program—a welfare program operated by the Social Security Administration. This program provides a minimum income level to disabled people who have not worked enough to be entitled to higher Social Security disability benefits—though SSI benefits are still well below the federal poverty threshold. 42 U.S.C. § 1382c.
Is there anything I should know about the term “medically determinable impairment”?
The Social Security Administration has taken a common sense approach: If a doctor can make a legitimate diagnosis based on anything more than a patient’s description of symptoms, the Social Security Administration almost always will find that the patient has a medically determinable impairment. The Social Security Administration requires that the diagnosis of fibromyalgia, for example, be based on counting tender points. In some circumstances, the Social Security Administration says that a patient’s description of symptoms may constitute findings. For example, the Social Security Administration agrees that migraine headaches are medically determinable based on the peculiar group of symptoms described by the patient when the physician rules out other causes for the symptoms.
Does the Social Security Administration expect treating doctors to know the precise legal definition of disability?
No. In fact, the Social Security Administration assumes that treating doctors know nothing about determining whether someone is disabled. The Social Security Administration says that figuring out whether a claimant is disabled or not is its job—this is a legal determination. So if a treating doctor offers the opinion that a patient is disabled, even if the opinion is dressed up with all the statutory jargon, the Social Security Administration barely considers the opinion. These are issues reserved to SSA. 20 C.F.R. § 404.1527(e) and SSR 96-5p. The Social Security Administration is most interested in the doctor’s opinion about what a patient can do.
How does the Social Security Administration find someone disabled?
The Social Security Administration has two sets of regulations that are very important in determining disability. One set, called the Listing of Impairments, consists of medical findings, which, if present, require that a claimant be found disabled even without looking at whether a claimant can do his or her past relevant work. The other set of regulations, called the Medical-Vocational Guidelines, are used only when a claimant cannot be found disabled using the Listing of Impairments and only after a claimant shows that he or she cannot do any past relevant work. The Medical-Vocational Guidelines directly apply only to physical impairments that cause exertional limitations, but they are to be used as a framework for decision making in other cases, as well. These rules state whether a claimant is or is not disabled when a claimant has certain combinations of age, education, work experience and residual functional capacity.
What is the Listing of Impairments?
It is a set of medical findings for many common physical and mental impairments (and some that are not so common). The Listings are available on the Internet at http://www.socialsecurity.gov/disability/professionals/bluebook/index.htm. When a claimant’s impairment meets the criteria set forth in the Listing of Impairments, the claimant is said to “meet the Listings” and is found disabled. It is also possible for a claimant to be found disabled because his or her impairment is as severe as a particular impairment in the Listing of Impairments. The claimant is then said to “equal the Listings.”
Does the treating doctor’s opinion play any role in deciding whether a claimant’s impairment meets or equals the Listings?
Although the Social Security Administration says that it will not ignore any opinion from a treating doctor, SSA describes the issue of meeting the Listings as one more of medical fact than medical opinion. When dealing with the Listings, the Social Security Administration regards the treating doctor mostly as a source of medical evidence. Although the Social Security Administration will consider an opinion from a treating doctor that a claimant meets the Listings and agree with it if the claimant’s findings coincide with those in the Listings, SSA is quick to point out that whether or not a claimant meets the Listings is an issue reserved to SSA. The Social Security Administration says that an opinion that a claimant’s impairment equals the Listings requires special expertise not possessed by treating doctors. SSR 96-5p. In actual practice, though, the Social Security Administration’s administrative law judges will carefully consider any well supported opinion that a claimant’s impairment meets or equals the Listings.
How does the Social Security Administration find someone disabled using medical-vocational rules?
The Social Security Administration first determines what work-related activities a claimant can still do despite his or her impairments, which SSA calls a residual functional capacity (RFC) assessment. SSA then uses the RFC assessment to decide if the claimant can do any significant job the claimant has done in the past 15 years. If not, the Social Security Administration translates the RFC into a work level defined in the Dictionary of Occupational Titles—e.g., sedentary, light or medium work. Then a decision maker literally looks up the claimant’s combination of RFC, age, education and work experience on a table, which tells whether a claimant with that combination of factors is or is not disabled.
How does the Social Security Administration determine whether drug addiction or alcoholism is “material”?
The test is this: If hypothetically the claimant were to stop abusing drugs or alcohol, would the claimant’s ability to work be restored? Let’s illustrate this with an example. Let’s say that alcohol caused a claimant’s disabling liver disease. If stopping drinking will restore the claimant’s ability to work, the Social Security Administration will find that alcoholism is material and therefore this claimant will be ineligible for benefits. But if stopping drinking would not restore the claimant’s ability to work, the Social Security Administration will find that alcoholism is not material, even though it was alcoholism that caused the damage in the first place and even though this claimant is still drinking. This claimant will be eligible for benefits.