It is difficult, if not impossible, to win a disability case if the claimant is receiving no medical treatment. Unless the claimant has a terminal disease for which no additional treatment is recommended or has undergone repeated surgeries without relief and doctors have indicated no further treatment is possible, an administrative law judge will want to see evidence of continuing treatment for the alleged conditions. Medical evidence is the key to winning a Social Security disability case. Gathering medical evidence is one of the most important functions of any Social Security case.
By definition, disability is the inability to do any substantial gainful activity by reason of anymedically determinablephysical or mental impairment. 20 CFR 404.1505 and 416.905. The impairment
must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by a [claimant’s] statement of symptoms . . . .
20 CFR 404.1508 and 416.908.
Symptoms are the claimant’s own description of his or her physical or mental impairment. Symptoms alone are not enough to establish that there is an impairment. 20 CFR 404.1528(a) and 416.928(a). Symptoms count only in connection with signs and laboratory findings. SSA will consider symptoms, including pain, only if there are medical signs and findings which show claimant has an impairment which could reasonably be expected to produce pain or the other alleged symptoms. 20 CFR 404.1529(a) and 416.929(a). Other sections of the regulations define “signs" as anatomical, physiological, or psychological abnormalities which can be observed apart from the claimant’s symptoms. Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by medically acceptable diagnostic techniques such as x-rays, EKGs and EEGs. 20 CFR 404.1528(b,c) and 404.928(b,c).
Acceptable sources of medical evidence for Social Security claims include licensed physicians, licensed osteopaths, licensed or certified psychologists, school psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 CFR 404.1513(a) and 416.913(a). SSA may also use evidence from “other sources" including nurse-practitioners, physician assistants, chiropractors, audiologists, school teachers, counselors, developmental center workers, social welfare agency personnel, and family members and friends. 20 CFR 404.1513(d) and 416.913(d).
The treating physician is the best source of medical evidence in support of claimant’s disability application. Unfortunately, claimants often have little or insufficient treatment due to a variety of factors including lack of insurance, unavailability of low cost medical care, and lack of transportation. Treating sources may be a hospital clinic or emergency room where claimant sees a different doctor or resident each visit, an overworked family practitioner, a Veterans Administration facility, or a free or low cost clinic where the claimant may be seen by physician assistants or nurse practitioners.
Records from treating physicians often consist of largely illegible handwritten notes or a statement of disability written on a prescription pad. In these circumstances, the attorney will need to be creative to obtain evidence supporting the claim. The attorney may request additional information, ask for a transcribed copy of the handwritten notes, ask the treating source to conduct additional testing, or furnish the doctor with functional assessment forms or listing interrogatories. The attorney may request a consultative examination at government expense or arrange, and pay for, a consultative evaluation by a physician or psychologist of your choosing. The attorney may meet or talk personally with the treating physician to explain SSA’s disability requirements and obtain more detailed evidence. You can record a question and answer session with a doctor and then transcribe the results for his/her approval and signature.
Medical reports should include:
20 CFR 404.1513(b)(c) and 416.913(b)(e)
Sources of records can include doctors, hospitals, chiropractors, VA facilities, psychologists and mental health counselors, social service agencies, speech therapists, physical and occupational therapists, schools and teachers, former employers, the Department of Corrections, probation officers, vocational rehabilitation agencies, Department of Veterans Affairs, pharmacies, insurance carriers, law enforcement agencies, Bureau of Workers Compensation, or other attorneys. Available records can include treatment notes, diagnostic test results, operative notes, biopsy results, admission and discharge summaries, psychological testing, IQ test results, therapy notes, attendance records, arrest records, medication records, consultative exams, and disability determinations by other agencies or by an insurance carrier.
Forgotten Sources of Key Information
As previously discussed, there are numerous sources for evidence which can aid in establishing a claimant’s disability. At a minimum, a claimant’s attorney should gather emergency room records, admission history and physical, operative reports, discharge summaries, test results, treating physician notes, psychological test results such as MMPI and WAIS III, physical and occupational therapy records, and mental health treatment and counseling notes. If illiteracy or low IQ is alleged, request school records and testing. If compliance with prescribed treatment is an issue, request pharmacy records to verify whether claimant is obtaining appropriate medication.
Former employers may have helpful evidence such as attendance records, performance evaluations, statements of medical limitations, and plant nurse/doctor records. Attendance records and performance evaluations before and after the onset of disability can help establish claimant’s work related limitations.
Long term disability (LTD) insurance carriers may have previously obtained all of claimant’s treating records and frequently will provide copies at no charge. Additionally, LTD policies often provide that if claimant is approved for Social Security disability, the monthly LTD payment is reduced. This encourages LTD insurers to help obtain needed evidence. The insurer may be willing to pay for a consultative exam or a detailed report from the treating physician.
If the claimant has had contact with any vocational rehabilitation agency or the state Bureau of Vocational Rehabilitation, records should be requested. Voc rehab records often include medical or psychological testing or academic (reading, math, spelling) and other aptitude tests.
In some mental impairment cases, such as when claimant has a personality disorder, law enforcement arrest and conviction records and Department of Corrections records can be useful in establishing a history on antisocial behavior. Likewise, evidence of failed marriages, domestic violence, school suspensions, or military dishonorable discharge may help establish a mental impairment.
If claimant is or has been represented by another attorney for workers’ compensation or personal injury, request records from the attorney. Likewise, if claimant is receiving service connected veteran’s benefits, request the rating decision and supporting medical records from the Dept. of Veterans Affairs.