Social Security: The Role of the Physician

Monday, October 1, 2007

By: Joshua W. Potter, Esq.

Reprinted from FMOnline

ABSTRACT:  A physician’s evidence and testimony may be the deciding factor in the success of a patient’s application for Social Security disability benefits; however, the fact that the reports are signed by a physician will not by itself sway the Social Security Administration.  Especially if the disability is related to one of the “new” or sometimes unrecognized disease entities, such as fibromyalgia, a brief unsupported conclusion that the patient is unable to work will likely contribute to denial of benefits. The physician’s report must be detailed, complete, prove knowledge of the patient and the disease, and document disabilities (including physical capacities, time duration for various activities, pain, and behavioral factors). Coordination with an attorney may help make the physician’s report most effective. (J Musculoskel Med 1992;9(9):65-74)

The Social Security system does not easily or quickly rule favorably on a claim of disability. For patients with fibromyalgia and similar disease entities, whose very existence is often questioned, proof of disability is especially difficult. Nevertheless, by following an orderly and logical process, claimants may become eligible to receive benefits ranging between $350 and $1,000 a month until age 65, in addition to Medicare, which begins making payments 24 months following disease onset.

When you are convinced that a patient is unable to work at any job, your medical evidence may be the deciding factor in determining whether the disability claim is successful. As the treating physician, your efforts should be coordinated with the claimant and an attorney to establish that, within the Social Security Administration requirements, a period of disability did exist.

In this article, I review the claims process, with emphasis on the role of the physician. I discuss the kinds of information you may be asked to provide, the need for clear and objective statements rather than terse opinions, and the fact that the investment of a small amount of your time may be instrumental in your patient’s being judged eligible for benefits.

WHAT IS DISABILITY?

The Social Security Administration test of disability is “An inability to perform any substantial gainful activity because of a medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” (1) In Social Security terms, “substantial gainful activity” means work that “(a) involves doing significant and productive physical or mental duties; and (b) is done (or intended) for pay or profit.” (1) A person is ineligible to receive Social Security disability benefits if he or she:

  • Is working (except in a “sheltered” setting), even though chronically ill
  • At present has the statutory ability and capacity to work
  • Recovered within 12 months of the onset of a disabling illness
  • Has no medically determinable impairment (except for one of the somatoform disorders, which are considered under a separate set of rules) (2).

THE PROCESS BEGINS

Physicians should advise every patient of the option to file for Social Security Disability benefits when that patient has not been able to work because of illness for 12 consecutive months. Indeed, an application may be filed as soon as it appears that the duration of disability will exceed 12 consecutive months. Often such a prognosis may be made within 6 months of disease onset, and at that time the filing process for Social Security disability benefits should commence.

A person who has worked and paid Social Security taxes applies for Social Security Disability Insurance (“Title II”), and a person of limited income and resources receives disability benefits through Supplemental Security Income (“Title XVI”).

Claims for Social Security disability benefits are made at the local Social Security District Office, either in person or by telephone (800-772-1213). Initial filing–which asks about the nature of the disease, name of the physician, and vocational background–is made by the claimant; physicians and attorneys are not involved at this time. It is the filing of a claim that alerts the government to a person’s inability to work.  Once the initial claim is filed, the Social Security Administration gathers by separate inquiry three types of information:

  1. Medical – initial description of medical condition, including capacity for lifting, walking, sitting, and standing (3)
  2. Vocational – description of past work; date last worked
  3. Administrative – proof of citizenship and, possibly, insurance status

A response by the Social Security Administration may take as long as 6 to 8 months.

The application will be analyzed by both a non-physician and a physician who reviews medical and vocational issues for the Social Security Disability Determination Services, a state agency that works under a contract to the Social Security Administration. (4) The physician-reviewer is usually not a practicing clinician and may have had no training or experience in the medical field under discussion.

Initial applications for disability benefits are routinely denied, and your patient should be prepared for initial denial. The language used by the Social Security Administration is consistent regardless of the details of the particular case, with no flexibility for individual situations. The denial usually observes that the claimant appears to be able to move hands and arms and to stand, but leaves open the possibility of reapplication if the patient’s condition worsens.

APPEALS

An appeal of the initial unfavorable determination must be made to the Social Security Administration within 60 days of its mailing. This time limit is jurisdictional, which means that Social Security will not have a legal basis to hear the matter if the filing is late. The appeal, which is not a new application, is called a “request for reconsideration.” The filing may be made at the Social Security Administration District Office or through the offices of an attorney who practices in that field. The attorney will charge 25% of back benefits –moneys that would have been received if payment of benefits had begun at the onset of illness –and may not by law charge or receive a fee without approval by the Social Security Administration.

The request for reconsideration triggers a request for additional information about the disease, medical providers, and treatment. Information about undisclosed impairments is invited, and questions about activities of daily living are posed. The physician is requested to submit the patient’s medical chart, but is not apprised of the rules and criteria for disability.

Following a request for reconsideration, the claimant may be referred for an independent medical examination by a physician under contract to the Social Security Disability Determination Service. Frequently, waits are long, examinations are brief, and medical records are not available for review by the Social Security Administration physician, who is paid approximately $88 for the examination and report.

The examination data are reviewed in the same manner as the initial application and, again, denial of benefits is the usual result.  There is no requirement that Social Security act on a request for reconsideration within a given number of days. (For example, in California, the wait is approximately 7 months.)

The denial usually contains suggestions for alternative work possibilities, which may bear no relationship to the applicant’s work history or experience. The job titles offered may include such examples as coil winder and doll stuffer; the titles are found in the Dictionary of Occupational Titles. The claimant should be aware that the suggestion does not necessarily have to be acted on but, rather, should be considered merely as a step in the process of obtaining disability benefits.

REQUESTING A HEARING

Following denial of the request for reconsideration, a “request for hearing” may be filed. This is an appeal of a prior unfavorable determination, not a new application. Filing must be within 60 days, which is jurisdictional.

The request for a hearing will result in a trial before an administrative law judge, probably within 4 months of filing the request. The trial is a new determination, wholly independent of the previous administrative decisions. It is at the trial level that experts in forensic medicine and trial advocacy are needed.

At the hearing, which is evidentiary (oral and written evidence is used), the patient is given an opportunity to testify regarding symptoms, past work, and residual functional capacity. The physician should provide a narrative report, after reviewing the chart and the Social Security Administration criteria for disability. For this hearing, the medical provider and attorney must work in close cooperation.  The judge usually does not have the background to be able to extract from the medical evidence a finding of disability, and will be guided by clear forensic medical reporting and by testimony by the patient.

If the trial results in a finding that the claimant is not disabled, an appeal to the Appeals Council may be made within the jurisdictional 60 days. The Appeals Council decision, usually issued within 7 months, is likely to affirm the decision of the trial judge.  An unfavorable Appeals Council decision may be appealed by filing a suit in the United States District Court.  This is an area of great legal complexity, and an attorney must be licensed in order to appear in District Court.

The District Court may reverse the decision of the administrative law judge, but more frequently it returns the matter for a new hearing (a remand).  This trial is based on the initial application filed in the district office, which clearly should be as complete and correct as possible.  It is not uncommon that 2 years will have elapsed between the initial application for disability benefits and the district court ruling.  All the while, the Social Security Administration has provided neither stipend nor payments for Medicare to the unemployed claimant.

THE ROLE OF THE PHYSICIAN

The physician’s role in the application process is shown in “Steps for the physician assisting in a disability claim.”**  The key to a successful disability claim is the medical report.  However, success ultimately arises out of the mix of medical evidence, law, and testimony. Seldom will disability benefits be granted if any of these elements is deficient.

Establishing a medically determinable condition is the shared province of the treating physician, the attorney, and the patient.  Case law and regulations require clearly articulated medical findings.  The administrative law judge faces a heavy burden to disregard the opinion of the treating physicians on all issues save the ultimate issue of disability.

Occasionally a judge disregards the opinion of the treating physician, and that decision is likely to be overturned on appeal. Other judges follow proper procedure and practice and base decisions on the physician’s testimony. The quality of the medical chart and report is, thus, of extreme importance. (6)

Physicians who wish to assist their patients in establishing disability must become familiar with the body of regulations that the Social Security Administration uses to evaluate medical conditions. These rules are known as the “Listing of Impairments,” (7) which constitute a keystone in the disability process. The listing is contained in the booklet “Disability Evaluation Under Social Security.”

There is no specific listing for fibromyalgia or many of the other diseases that have gained recognition recently or whose existence as a disease is under debate. Thus, when assisting a patient disabled with such a disease, physicians should consider whether any other listed criteria apply. For example, chronically ill patients who are afflicted with fibromyalgia frequently manifest many of the criteria for psychiatric disability (listing 12) or have somatoform disorders (listing 12.07). (6)  Basing an appeal on one of these criteria may be inelegant but appropriate.

When a patient meets the qualifications of a listing and the treating physician provides only a conclusion of disability, unsupported by the medical record or factual bases, failure to attain disability status is assured.

MEDICAL RECORDS

Disability claims that arise from diseases such as fibromyalgia mandate the most scrupulous and detailed medical charting, if the application for benefits is to succeed.  Chart entries for fibromyalgia and similar diseases often are brief and incomplete, reflecting the poor doctor-patient relationship with these patients, who may be impatient for relief and disillusioned with physicians.

A hastily written chart note will not support a physician’s later statement that a patient is unable to sustain regular and substantial employment.  Even the structured “symptoms, observations, assessment, plan” (SOAP) format is inadequate to convey the sequelae of a complex disease such as fibromyalgia.

When a physician recognizes that a patient may become a candidate for Social Security Disability payments, chart entries should be made in detail. Not only are height, weight, and blood pressure essential elements in charting, but also adaptive reactions, physical capabilities, and functional deficits must be noted.

Every patient visit should result in entries concerning physical capabilities for lifting, bending, and carrying (verified with measured weight); time durations for sitting, standing, and walking (by history); psychosocial and adaptive behavior, including the ability to interact appropriately with others, follow instructions, and adhere to a regular schedule; and the complex of depressive symptoms.

Although this may seem to be a heavy reporting burden, with a properly designed chart this information can be quickly set forth. At a trial, the value of such a contemporaneous and complete record is immeasurable.

PAST WORK

In gathering reports for a Social Security Administration disability claim, the focus must be on establishing the presence of a medically determinable condition that prevents substantial gainful employment.   Substantial gainful employment has two aspects: past work and all other work.

Essentially, to be found disabled, a person must be not only incapable of performing past relevant work but also unable to perform all other work (the rules change for persons over age 50).  Although this requirement may appear to be an insurmountable barrier, disability can be demonstrated with consistent, accurate, and complete medical reporting.

Almost any employment requires regular attendance, the ability to concentrate and follow instructions, and appropriate reactions to supervision.  Postural requirements such as walking, lifting, and standing are also considerations.  A Claimant’s case is greatly furthered by a report that reads: “Patient’s past work required sitting all day, analysis of complex data, and lifting to 10 lb. Now the patient can sit a maximum of 20 minutes, cannot concentrate because of medications and pain, and is always exhausted because of lack of sleep.  Patient is irritable, argumentative, and misses appointments.  Measured lifting is now to 3 lb.   Cannot and should not work…”

Such a notation provides the attorney the opportunity to develop testimony at the administrative hearing.   Conversely, a notation of “complains of pain, treatment continues” virtually guarantees nonpayment of a claim to Social Security for disability.

Diseases with a profile of alternating acute and remissive states should be reported in their totality, and the temporal relationship between acute and remissive status noted in the chart.  The Social Security Administration has been known to deny a claim of disability because the 12-month duration requirement was not met as the result of 1 month of improvement during the seventh or eighth month of illness.

NARRATIVE REPORT

Attorneys often request the treating physicians to prepare, for the hearing, a narrative report, which is central to the development of the claim. This report is most effective when the legal issues to be discussed are identified by the attorney.

The narrative report should follow the familiar forensic format:

  • History – a description of work history, demonstrating familiarity with the patient’s past work, including its physical and intellectual demands.
  • Examination – reference to the patient’s medical chart, including a report on pain and the side effects of pain medication; an assessment of mental health; a report on measured physical capacity (capacities based on regular, sustained effort); physical findings, including reference to tolerance for sitting, walking, and lifting.
  • Discussion – a review of objective physical test results and clinical observations; a discussion of pain, specifying the activities that exacerbate the pain; support for your prognosis accompanied, where applicable, by an indication that you have seen many similar cases and are familiar with the pathology of the disease; assertions, if true, of your expertise in this field that the complaints are credible, and that the patient is not malingering or seeking secondary gain; as well as a statement strongly confirming the diagnosis and stating that the symptoms are consistent with the signs and diagnosis.

A complete narrative forensic report supported by a good chart need be only two to three pages long, requiring perhaps a half hour of dictation.  This report can make the difference between a rejection of the claim of disability and thousands of dollars of needed benefits for your patient.

IN-PERSON TESTIMONY

Testimony from a treating physician greatly increases a patient’s chance of success at the disability hearing.  An administrative law judge gives serious consideration to live medical testimony, especially when deciding about a disease, such as fibromyalgia, that is not yet on the list of impairments.  Testimony is most effective when supported by a complete and detailed chart and when the testifying physician has a clear understanding of the Social Security system, the formalities of disability proof, the relationship of age to the listed disorders, and vocational considerations.

Careful preparation with the patient’s attorney is required for the testimony, which is likely to take a half hour. Judges often accommodate a physician by allowing testimony out of order, thus speeding the process.  Not every case, of course, calls for live physician testimony.  The attorney is best able to make such a strategic assessment.

DISABILITY ECONOMICS

Social Security disability benefits range between $350 and $1,000 per month, and Medicare begins 24 months after onset of disease. (8) The amount of Federal Insurance Contributions Act (FICA) tax paid by the patient while employed determines the amount of benefit.

In my experience, persons who claim disability due to fibromyalgia are typically bright, articulate women who have excellent earnings records.  Past work is usually in middle to upper management and is generally well-paid for the geographic location.  Because such patients have had high FICA payments, they will likely receive $750 to $1,000 per month until age 65. At that time, the disability payment comes from regular Social Security retirement, without penalty for early retirement or quarters of no income subsequent to the onset of disability.

In addition to ongoing monthly benefits, most fibromyalgia patients receive substantial retroactive moneys. Social Security benefits begin with the sixth month following the cessation of work activity.  The first 5 months of benefits are retained by the government as a “waiting period.” It is not uncommon for more than 24 months to have elapsed before a favorable determination.

Because of delays during the filing process, early recognition of disability and early filing are important: disability benefits are payable as of 1 year before application; Supplemental Security Income is payable from the application date.

Steps for the physician assisting in a disability claim:

  1. When it becomes clear that the patient will be unable to perform any work for at least 12 consecutive months, suggest that the patient apply to the Social Security Administration for disability payments.
  2. Make sure that all entries on the patient’s chart are complete and detailed.
  3. Once the application and appeals processes have been exhausted and a hearing is scheduled, work with the patient’s attorney to prepare a narrative report on both the patient and the illness causing the disability.
  4. Prepare, with the attorney, testimony to be presented in person in court.

References:

  1. 20 CFR 404.1505.
  2. 20 CFR 404 Appendix 1, Rule 12.07.
  3. 42 USC 423(B).
  4. 20 CFR 404.1503.
  5. 20 CFR 404.1519(A-P).
  6. Murray v Heckler, 722 F2d 499 (9th Cir 1983).
  7. 20 CFR 404 Appendix 1.
  8. 42 UCS 426(F).

Joshua W. Potter is an attorney in the firm Potter, Cohen, & Samulon, 3852 East Colorado Boulevard, in Pasadena, CA 91107.  He has done a lot to help people with FMS.