Obtaining Disability Benefits: How and When to Talk to Your Doctor

Sunday, October 1, 2006

By: Scott E. Davis, Esq.

Reprinted from FMOnline


I was fortunate to be in Los Angeles as a speaker at the FAME 2000 International Fibromyalgia (FM) Conference.  At the conference I had the opportunity to talk with many doctors from across the country.  Specifically, we discussed issues regarding how to best help their patients who are contemplating or have filed a claim for disability.

Obtaining the support of a treating physician has been a frequent issue discussed in my articles.  As a part of our practice, every week we talk with treating physicians about our clients’ disability claims. Over the years we have found that talking with doctors is an excellent way to help them understand the disability process and how they can help their patients.  Most doctors do not know how disability is defined or proven at the Social Security Administration (SSA). This is a real problem because most doctors overestimate what their patients are able to do in a work environment.

You may ask why expend so much effort to obtain a doctor’s opinion?  Because federal law gives tremendous weight to the opinions of a treating physician regarding whether their patient is able to sustain full time employment. Disability cases are usually won or lost based on treating physicians’ medical records and opinions.  In fact, if you do not have the support of at least oneof your treating physicians, you’re at a significant disadvantage.

SSA and Administrative Law Judges (ALJs) look for your treating physicians’ opinions regarding your inability to work if you have not obtained them, they may assume your doctor does not support your claim.  Be assured that SSA’s doctors will render opinions regarding whether you can work…and usually they are disastrous for your claim.

The critical question becomes, “How and when should you discuss your disability claim with your doctor?”  Using the following tips should maximize your chances for garnering your doctor’s support and avoiding pitfalls.

Tip #1:  Begin every doctor/patient relationship believing you will return to work after treatment.

The fastest way to turn any doctor off is to tell them on your first or second visit that you have filed a disability claim and need their support.  At the FAME conference, doctors repeatedly told me they don’t want to treat a patient who is more interested in obtaining disability benefits than treatment. Why?  Because a doctor’s main goal is to treat a patient and restore health.  If the patient is more interested in legal issues the doctor will be very reluctant to support your claim.  If a treatment plan does not work, the doctor will likely conclude that it didn’t because you never gave it a chance due to other considerations.

The bottom line is you need to give your doctor’s treatment regimen sufficient time and effort to work.  This may include several treatment regimens over a period of time if one or more fail.  By following everything your doctor prescribes, you will gain their support because your condition has not improved in spite of their best efforts.

Tip #2:  Don’t discuss the “D-word” until you have established a relationship with your doctor!

After a client has followed the advice rendered in Tip #1, the next issue is: “When do I talk to my doctor about my claim?”  First, unless they ask, don’t tell your doctor you have a claim pending or are contemplating filing one.  Please understand I am not suggesting you be deceptive, but rather put the issue on the back burner.  Again, if the treatment received in Tip #1 is successful, your disability claim may be a moot point.

When, then, should you broach the subject? The answer varies; however, it is usually best to wait until after the third visit.  Why?  This should allow a sufficient period of time for the doctor to have a working understanding of your condition and also for his/her treatment regimen to show progress or failure.  Both of you should feel comfortable with one another as many months will have passed since your relationship began.  Simply put, the better your doctor understands you the more likely they are to support your claim.  The better they understand the severity of your symptoms, the more likely they are to appreciate the functional limitations they impose on all aspects of your life.

Tip#3:  Never use the words “disabled” or “permanent” when talking with your doctor!

Unfortunately, the word “disability” has been stigmatized, the connotation being that a claimant is simply trying to “live off the system or take a free ride at everyone else’s expense.”  This stigma is based on the public’s pervasive misunderstanding of SSA’s definition of disability.  Many people (and even doctors) think you have to be literally bedridden or in a wheelchair to be eligible for benefits.  Moreover, they believe the condition must be permanent.  Nothing could be further from the truth!

Although the definition changes as one ages, the easy definition is that SSA deems a person disabled if they are unable to work in a sedentary(sit-down) occupation, full-time on a sustained basis (5 days, 40 hours per week).  The disability must either last for a minimum of twelve (12) months, or be expectedto last for 12 months, or result in death. Notice the definition does not require that your disability be permanent or place you in a wheelchair!

When you have the conversation with your doctor it is important not to use the words “disabled” or that your condition is “permanent.”  Why?  Because that’s not SSA’s definition of disability.  Most doctors will not want to tell a patient they are disabled and that it is permanent.  So don’t put them in that position.  Second, no one knows the answer to how long your disabling condition may last it may be only temporary.  Don’t unnecessarily complicate the issue.

Instead, discuss with your doctor the fact that you believe you are unable to sustain full-time employment now and into the foreseeable future.  Ask whether he/she agrees with you.  If they do, tell them you have reluctantly filed a claim for disability benefits and need their support.  It is very helpful if they note your inability to work (and why) in your medical record.  By making the time frame for disability as short as possible, you are much more likely to garner your doctor’s support.  After all, being unable to work for the foreseeable future is easier for your doctor to agree with and understand than trying to convince him/her that you have a permanent disability!

Using these tips should help you obtain your doctor’s support and maximize your chances of success in your claim.  Remember, don’t quit and keep fighting for the benefits you deserve!

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Although Mr. Davis has experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of his disability practice is devoted to representing individuals with FM and/or CFIDS.  He represents clients throughout the United States.  Mr. Davis invites your questions and inquiries regarding representation via e-mail (harris.davis@azbar.org) or telephone at (602) 482-4300.