Medical Opinions in Social Security Disability Claims—
“The Game of Experts”
Statistics bear out that Social Security Administrative Law Judges continue to err by relying on opinions of backroom doctors under contract rather than on opinions of independent providers who provide actual medical care. Social Security Disability attorneys at hearings must know how the law works and how to argue in support of treating medical opinions.
Roseville, Minnesota—On January 6, 2019, the Nashville Tennessean newspaper published the story of Alan, a man who was denied Social Security Disability benefits despite having Stage 4 colorectal cancer. His cancer was inoperable, spreading, and was missed by a “State Agency” physician reviewing his claim.
In Alan’s case, the newspaper uncovered that the state agency physician who denied Alan’s claim spent an average of 12 minutes per claim in 2018. Other agency physicians averaged 3 and even 4 claims per hour. Alan was ultimately approved for benefits.
All applications for Social Security Disability benefits are first reviewed by state agency physicians or psychologists under state contracts with the Social Security Administration. These physicians and psychologists never examine Social Security applicants. Instead, they review medical records only and reach opinions about physical and mental limitations following Social Security’s guidelines.
Social Security places great weight on these state agency medical opinions. Between hearings a few years ago, I had this off-the-record interchange with an out-of-state judge:
ALJ: “I am tired of all these doctors just filling out these opinion forms for their patients. Checking the boxes is all these forms are.”
Me: (In a moment of thinking on my feet) “State agency doctors also fill out check box forms, but they don’t even meet these claimants.”
Point made at the moment, perhaps. Let’s start with the basics. What are medical opinions?
According to Social Security’s Bluebook, a summary of Social Security regulations law for medical professionals working with The Social Security Administration (SSA) is a U.S. government agency that administers social programs covering disability, retirement, and survivors' benefits. It was created in 1935 by President Franklin D. Roosevelt., a medical opinion is a “statement about what an individual can still do despite his or her impairment(s) and whether the individual has one or more impairment-related limitations or restrictions in one or more specified abilities.”
Why do medical opinions matter in Social Security Disability hearings? Cases can win or lose based on which combinations of physical or mental limitations our clients can prove. For example, a client who has a treating medical opinion that hand arthritis limits her ability to handle objects may prove she is disabled.
But first, you must get treating medical opinions. While some treating providers do not cooperate, it is important in every Social Security Disability claim to request medical opinions from certain treating providers. These opinions must be from certain medical providers to be valid. At this time, Social Security regulations recognize opinions from physicians, licensed or certified psychologists, and—notably, from advanced practice registered nurses and licensed physician assistants (in their respective specialty areas).
Getting treating medical opinions is not an end in itself. Here’s the kicker: you need reasons for Administrative Law Judges to place weight on these treating medical opinions. This got harder a few years ago, unfortunately. In March of 2017, Social Security changed the regulations and placed less weight on treating medical opinions. Yes, less. Rather than accede to the higher knowledge from actual treatment, Social Security now must only “consider” treating medical opinions in hearing decisions. Placing controlling weight on these opinions is optional.
This is a challenge, further complicated by the fact that recently published statistics reveal ALJs keep failing to evaluate (or are just plain ignore) treating medical opinions at the same rate ten years and running.
As a Social Security attorney, how do you do argue in support of treating medical opinions at hearings?
In short, in line with the regulations, argue that your clients’ treating medical opinions are:
- Supported by objective tests in the medical record with citations,
- Consistent with examinations in the medical treatment record with citations,
- More reliable than state agency doctor opinions who lacked all the evidence, medical specialization, or knowledge through actual treatment over time.
Also, argue that the state agencies should place weight on supportive opinions of consultative (read “independent”) examiners they have appointed to examine claimants. Seems odd, but state agencies are raising the “ignore supportive consultative examinations” mantras to a high art form.
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Treating medical opinions in Social Security claims continue to be given short shrift. This is particularly concerning as medical science advances. Attorneys need to be on their “A” game.
As one astute colleague has pointed out, how do state agency doctors know more about patients than the providers who dictated their records?
I would add: would you really rely on the medical opinion of a person you’ve never met?