There is no such thing as the “perfect” case. Even the most deserving claimants may end up with a doctor who they don’t like or with whom they do not get along. This is especially true in “pain” cases when narcotic medicines may be prescribed. There are also doctors out there who do not believe in the concept of disability – as far as they are concerned no one is fully disabled and these doctors will not cooperate with a Social Security claimant at all (needless to say, it is helpful if you discover this trait in your treating doctors early enough in your case to find another doctor!).
What about unhelpful medical records? I see this frequently in cases where there was a workers’ compensation case. “Company doctors” often minimize symptoms and generate records indicating that a claimant has the capacity to return to work. Other times I see unhelpful records in cases where my client just did not “click” with his or her physician or psychiatrist.
One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:
I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. The psychologist and my new psychiatrist say not to put the former psychologist’s name on the Review form: ssa-454-bk. Am I allowed legally to leave her name off? What consequences would there be. There is nothing on the form that says I can’t omit information (no perjury warning). What are my rights, and if I put her on the form will my new psychiatrists’ opinions outweigh the old?
Here is my response: Social Security regulations now state that we must submit all medical records, even those which are unhelpful or damaging to your case. In the case of workers’ compensation records, we can argue that the judge should give those records less weight because they are inherently biased against you – but we still have to submit.
If we ask your treating doctor to complete a functional capacity form, I believe that we are obligated to submit that form even it if does not help your case – that is why you want to talk to your doctor before asking him/her to fill out a form.
I disagree with your position, Jonathan. Although as attorneys we are required to provide zealous advocacy, ethics rules also require us to remain candid with the courts. I have found that being candid with adverse evidence has made ALJ’s more trusting that I am not hiding the ball with a claim.
Nick, I think that there is support for your position. My colleague Tomasz Stasiuk from Colorado Springs, CO will be publishing a rebuttal on Sept 4 on his blog – http://www.socialsecurityinsider.com. I think that there are arguments for both positions and, of course, one can deal with the issue on a case by case basis.
i went to a doctor and she now refuses to give the report because it involves malpractice of another doctor. voc. rehab. denied me saying i was too disabled to go to school. i have bad incontinence requiring surgery. my psychiatrist said i need it to go to school, the surgery but ivwas denied medicaid in florida. now social security wants me to go to a gp and a phd for a psychogist but i have been cleared be a ny psychiatrist professor as not mentally ill so what can a psychologist do as she is less qualified than my doctor. i needva surgeon not a gp to treat my incontinence dr. gerdis said. i should have reinatatement as i am less than 60 montgs on ssi not a new application. how can voc. rehab deny me as they paid 3500 to a urologist and then stopped claiming i am too disabled. dr. gerdis said i am not psycho at all and she is a psychiatrist.bloch
I have been sent form SSA-454-BK and have been on disability for 23 years for major deprision and bipolar depression. Prior forms over the years were the short forms and have allways been enough to continue my payments.Now I have this form and since MD visits I have had in the past 12 months generly delt with other issues other then getting antidepressents antianxity meds.
What is the best way to leagely fill out this form?
I have several question regarding my Doctor, I got hurt at work, went to see my doctor reported to her that I was having pain on the left side of my body. she started sending me to all types of specialist to see what was going on. we never discuss what was happen but I and her assistant discuss what was going, the doctor and I would only speak about sugar and A1c level and what needed to be done, she never spoke about my injuries on how it happen just that she would send me here and there. Finally I started seeming other doctor found out that I have a bad disc in the lower part of my back and bad disc in my neck. and multi injuries on the whole left side of my body. what can I do to get her to recap not showing it in her paper work. The only things she speak about it not losing her license but what about me.