Failure to Follow Perscribed Treatment

From time to time the issue of whether the claimant failed to follow prescribed treatment becomes the focal point. 20 CFR 404.1530 states “an individual who would otherwise be found to be under a disability, but who fails without justifiable causes to follow treatment prescribed by a treating source which the Social Security Administration determines can be expected to restore the individual’s ability to work, cannot by virtue of such ‘failure’ be found to be under a disability.” SSR 82-59 further expands on this definition declaring that the SSA may make a determination that an individual has failed to follow prescribed treatment only where all of the following conditions exist:

1. The evidence establishes that the individual’s impairment precludes engaging in any substantial gainful activity (SGA) or, in the case of a disabled widow(er) that the impairment meets or equals the Listing of Impairments in Appendix 1 of Regulations No. 4, Subpart P; and

2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and

3. Treatment which is clearly expected to restore capacity to engage in any SGA (or gainful activity, as appropriate) has been prescribed by a treating source; and

4. The evidence of record discloses that there has been refusal to follow prescribed treatment.

A few things here are important to note. First off, the treatment must be prescribed by the treating source. The treating source must be a medical professional who attends to the claimant’s medical needs on a regular basis. Thus, a doctor the SSA sends the claimant to for a consultative examination cannot determine a claimant to be denied for failure to follow prescribed treatment. In addition, the prescribed treatment must be expected to restore the ability to work. In a recent case I had, I got the doctor to testify that even if the claimant gave up smoking, her heart and lung condition would not improve enough to restore her ability to work.

If the SSA determines the treatment was prescribed by a treating source and it would be expected to restore the ability to work, it must then give the claimant the chance to offer an explanation as to why they did not follow the prescribed treatment. The SSA’s then determines whether the given explanation was “justifiable”. SSR 82-59 provides a list of possible justifiable explanations. A few, but not all, examples include: If treatment is contrary to religious belief (with documentation of membership to the religious affiliation along with statements from the church authorities), the inability to afford prescribed treatment and there are no community resources available (all possible resources should be explored and documented by the claimant), another treating source advises against the treatment prescribed by another source, the treatment involves a high degree of risk or amputation. These are but a few examples.

Failure to follow prescribed treatment can be a devastating reason for a denial. The SSA has determined the claimant cannot work yet they get denied benefits and insurance. It is very helpful to have an experienced attorney during the lengthy process in order to advise the claimant about the proper actions to take when a doctor offers treatment as well as possible community resources available to the claimant so they can follow the prescribed treatment. At the hearing, or in a brief, it is again helpful to have an experienced attorney who has an understanding of the federal regulations in order to rebut the SSA’s denial or contemplation of denying a person for failure to follow prescribed treatment. With proper counsel and advocacy from an experienced attorney, a claimant can avoid being denied due to failure to follow prescribed treatment.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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