If you haven’t already noticed, physicians are working harder for less money. I expect this trend to continue, especially with the government getting more involved in setting prices for services. In the Social Security disability world, we rely on doctors to provide medical records and to assist attorneys in identifying specific work limitations that limit patients. These limitations often form the basis of a functional capacity argument for disability.
In other words, if a treating doctor is willing to go on record to say that his patient would likely need unscheduled breaks, or cannot use his left arm for reaching over shoulder level, or needs to extend his legs while sitting, those limitations can be used to argue that certain categories of jobs (or, better – all jobs) would not be possible for this particular claimant.
In my practice, I have created “functional capacity” forms that I either send to doctors or that I give to my clients to bring to their doctors. A good form that contains numerous limitations can result in a favorable decision, even from a judge who does not approve a high percentage of cases. As a wise old judge once told me “if you have a compelling functional capacity form, I usually have no choice but to approve that case.”
Now, we have the problem of physicians who do not want to spend the time filling out functional capacity forms. Those that do may want $100, $200 or more to do so. Sometimes it makes sense to pay for this service but sometimes it does not. Perhaps you are not sure that your doctor will support you fully. Perhaps the medical records from that doctor do not contain observations that offer a lot of support (this is not good, but a problem for another day). What can you do?
Obviously the best option is to find a doctor who will support you. My clients are often surprised to learn that some physicians simply do not believe in the concept of “disability.” I remember engaging one such doctor at a dinner party a few years ago – he insisted that in his 20+ years of practice he had never met anyone who could not work some type of job. I tried to explain to him that Social Security was considering work functioning over an extended period of time, meaning that a patient might be able to get through a week or two, but over the course of three or four months or longer, that person would not be a reliable worker. This doctor could not seem to grasp this concept – and any patient of his who was seeking disability either through Social Security or from a private long term disability carrier would be in trouble.
If you cannot change doctors, another option is to seek non-medical evidence. A good source of such evidence are former co-workers and supervisors. In many cases, I have submitted affidavits (sworn statements) from former co-workers or supervisors that spoke about my client’s slow pace of work, need to take frequent unscheduled breaks or other limitations. I get these statements by asking my client to identify potential affidavit witnesses and to call these people to ask for their cooperation. Next, I call the affidavit witness and talk to that person about my client’s limitations. From these discussions, I will write up an affidavit which I will email or fax to the former co-worker for changes or corrections. Assuming that the former co-worker is comfortable with the wording, I have that person sign the statement before a notary and send it back to me for submission.
Now, I don’t think that this type of evidence will overcome a hostile doctor, but it can tip the balance when the treating doctor is generally supportive but will not fill out a form. It also works when the medical records come from public hospitals or the Veterans Administration hospital, or when medical treatment is limited.
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.
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