In any disability claim, the medical evidence you provide to the Social Security Administration is the most important part of establishing your disability. A supportive opinion from your treating doctor can be very helpful in establishing that you are disabled.
The Administrative Law Judge is required to consider the opinion of any treating doctor when evaluating your case. The current “treating doctor rule” applies to all claims filed after May 27, 2017. Prior to May 27, 2017, the law was much more favorable to treating doctors’ opinions. The current law states there are several factors the judge must consider.
How the Social Security Administration Evaluates the Opinion of your Treating Doctor
CFR 404.1527 (which can be found online at https://www.ssa.gov/OP_Home/cfr20/404/404-1520c.htm) states the following are the factors that SSA uses when evaluating the opinion of your treating doctor:
(3) Relationship to you, including the length of the treatment relationship, frequency of treatment, whether that doctor examined you, and the nature of the treating relationship
(4) Specialization of your treating doctor
(5) “Other factors,” which is a catch-all with an example of a doctor’s knowledge of the disability program
These factors are not considered equal. 404.1527 specifically states that the factors of supportability and consistency are “the most important.” This means is that the ALJ will take into account whether your treating doctor opinion is supported by the medical evidence and the other evidence presented at the hearing.
So if my treating doctor provides an opinion, the Judge will have to use that opinion and find me disabled, right?
Unfortunately, no. As “consistency” and “supportability” are the most important factors, the judge will look at the other medical evidence to see if your doctor’s opinion is supported. Sometimes, a treating doctor will provide an opinion that you are significantly limited. However, when evaluating that treating doctor’s medical records, the examination findings do not support the severity of the opinion. Perhaps you have a low back injury and your doctor provides a medical opinion that you can only sit for half an hour and then will need to lie down. However, the medical records from that treating doctor state your physical examination was normal or only had mild issues. An ALJ would be free to reject the opinion of your treating doctor because the opinion was not supported by their own treating records.
Because of this issue, it is important that the treating doctor is putting their exam findings in the medical records. If they are not performing a physical exam, it is similarly important that the doctor mentions this in the medical records. Electronic records are standard now, and it is important that the judge not get the wrong idea about what is contained in your medical records due to sloppy record-keeping by a medical provider.
So what if my doctor writes in the medical records that I am disabled?
The answer to that question depends on the explanation from the doctor. If your doctor just says you are disabled without any other explanation, this is considered a comment on an “issue reserved for the Commissioner.” This simply means it is the Social Security Administration (i.e. the Judge) determines if you are disabled or not. The law states this opinion is not valuable, which practically means the judge does not have to provide much, if any, explanation rejecting the opinion of the doctor. If your doctor provides some explanation as to why he or she believes you are disabled, then the ALJ would have to provide some explanation as to whether the opinion is rejected or accepted.
An attorney can assist in attempting to get your doctor to fill out a “medical source statement.” The Law Office of Brad Thomas has composed forms that can be provided to your doctors. These forms are specifically designed to provide the doctor the ability to explain what they believe your work ability is. For example, if you have a physical medical condition, the form will ask your doctor how much you can sit, stand, walk, lift, and carry. If you have a mental condition, we will ask your doctor how your mental illness performs basic work activities, such as working with others and concentrating. We will ask your doctor how any pain you experience will lead to deficits in your ability to complete your workday. These forms are specifically designed to provide the judge the information needed to evaluate your work ability.
What if I have been found disabled by the VA, the state I live in, or a short-term disability provider?
While this certainly does not hurt your case, unfortunately, under the new rules, Social Security considers these opinions “inherently neither valuable nor persuasive.” This is understandably frustrating. It is especially frustrating to see a veteran with a 100% disability rating who has been determined disabled by the VA to have to jump through administrative hoops to get found disabled under by the Social Security Administration. That said, if there is a medical opinion that supported the prior agency or private disability provider’s decision, that must be considered by the ALJ.
Common Mistakes in Denials from Social Security Judges
The rules do provide discretion to the judge to evaluate your treating doctors opinions, but a careful review of any denial is necessary to ensure the judge complied with the law. The ALJ is still required to evaluate a treating source opinion, even if the judge ends up rejecting it. The law requires the ALJ to specifically explain why the treating source opinion was rejected.
That said, if your doctor explains themselves, the judge must evaluate the opinion based on the factors cited above. 404.1527(b)(2) states that the judge “will explain how we considered the supportability and consistency factors for a medical source’s medical opinions in your determination or decision.” Because the new rule is relatively recent, many federal courts have not yet spoken as to how much explanation is required. But at the very least, the judge should at least address the opinion and provide some explanation.
It is important that you have an attorney that will assist you in obtaining a treating doctor’s opinion. It is also important that you have an attorney that is familiar with how the judge will evaluate a treating source’s opinion. The Law Office of Brad Thomas can assist you in both obtaining that opinion and being able to explain to the judge why you are disabled based upon your treating doctor’s opinion.