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April 2013 Archives

Evidence in a social security disability, SSI or DIB Claim: Non-treating non-examining physician opinions are not good

Non-treating non-examining physician opinions are not good evidence in a social security disability claim. Social Security Disability Specialist -- Susan O\'Malley In most Social Security disability cases, the Social Security Administration uses medical consultants to review the record and issue opinions about a claimant's functioning at the initial and reconsideration levels of review. These physicians typically do not examine or treat the claimants, and base their opinions upon a review of medical records only. Social Security Disability application is stronger with a good letter from your doctor Federal Courts have ruled that "the opinion of a non-treating, non-examining physician based upon only a review of the record cannot constitute substantial evidence to support a finding of non-disability." Smith v. Schweiker, 795 F.2d 343, 348 (4th Cir. 1986).  A determination by a state agency non-treating non-examining physician can be substantial evidence, but only when it is "consistent with the record." Smith, 795 F.2d at 345 (citing, Kyle v. Cohen, 449 F.2d 489, 492 (4th Cir. 1971)).  More recently, the Eastern District of North Carolina affirmed those rules of law in Mathis by Mathis v. Shalala, 800 F.Supp. 461, 463 (E.D.N.C. 1995).  In general, greater weight is accorded to the opinion of an examining physician than a non-examining physician. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997); Ortega v. Chater, 933 F.Supp. 1071, 1074 (S.D. Fla. 1996)(citing Lamb v. Bowen, 847 F.2d 698 (11th Cir. 1998)); see also, SSR 96-6p. These laws can be important to your disability case because a non-examining non-treating physician will not know as much about your condition as your doctors. You do not get to discuss your condition with these doctors and they do not get to see how credible your pain or disability is for themselves.  In almost every disability case, these medical consultants review your records and issue opinions. Often, these opinions are the only items of opinion evidence available in a case, and they frequently underestimate the functional effects of a claimant's impairments and symptoms. The Federal Court opinions regarding how much weight a non-treating non-examining physician should be given reaffirm the value of a treating physician opinion to your disability case. When you have applied or are thinking about applying for disability, it is very helpful to talk to your treating doctors, psychiatrists, and other providers about whether they will support your disability application. By getting your treating physician to detail why you are disabled, you provide the judge with opinion evidence that is often contrary to the opinions of the medical consultants. As explained in the law cited above, when there is an opinion that is contrary to the medical consultants opinion, the medical consultants opinion cannot be used as substantial evidence to support a finding of non-disability. If you have any questions about treating source opinions, medical consultant opinions, or anything else regarding Social Security disability, please contact us.

Response to NPR article on Social Security Disability -- Susan O'Malley Board Certified Social Security Disability Specialist

Last month, National Public Radio's (NPR) This American Life and All Things Considered programs ran a story that we feel incorrectly portrayed Social Security Disability as a new American "welfare" program. The story, entitled "Unfit for Work: The Startling Rise of Disability in America," appeared to have a thesis: that the states are trying to improperly move welfare recipients onto the federal disability roles because of budgetary pressures. But when the facts and research did not necessarily line up with that preconceived thesis, the story employed disingenuous logic and dubious use of anecdote over statistics in order to prove that point regardless of the truth.  Unfortunately, a number of blogs and forums picked up on the NPR story and made expanded and unwarranted attacks on the disabled and their advocates. In response, eight former Commissioners of the Social Security Administration wrote an Open Letter disputing the story. In that letter, the former Commissioners responded with detailed statistics to many of the spurious allegations raised in the NPR article. The NPR article made it seem like it was reasonably easy to be granted disability, relying upon anecdotal evidence. For instance, the NPR article makes it seem like a certain Dr. Timberlake in Hale County Alabama had the power to issue a binding recommendation that an individual be adjudicated disabled. Of course, a treating physician's opinion is valuable, but the article is misleading in how the Social Security Administration handles treating physician opinions. Also, the NPR article also makes a dramatic point that "nobody" is "defending the government's decision to deny disability."  That is clearly false.  The Open Letter responds to these dubious allegations in a calculated manner.  First, they point out that disabled individuals are very ill, and that about 1 in 6 die within five years of receiving benefits. Without Social Security disability or SSI, most of these individuals would have essentially no option for sustenance and health care. Something that the NPR story failed to appreciate is that many of these individuals will not receive much in terms of Old Age Retirement Social Security benefits because of their medical conditions. Therefore, it is perfectly fair and morally justified to pay out benefits from the Social Security system earlier in their lifetimes.  The Open Letter then points out the fundamental flaw in the NPR story: the standards for approval for benefits are very strict.  Only about 40 percent of adult Disability and SSI applicants receive benefits after all levels of appeal. Why is that number so low? Because, contrary to the allegation in the NPR piece, there are numerous defenders of the government's decision to deny disability. The local district offices deny the majority of initial applicants, many of whom are ultimately granted disability before an Administrative Law Judge.  The Administrative Law Judges themselves frequently err on the side of caution, i.e. not granting benefits, when adjudicating cases, and then the Appeals Council routinely denies appeals without review. When the disability applicant finally appeals to Federal Court, the first time a non-Social Security employee looks at the application, the government does, in fact, hire a lawyer to defend their position.  The allegation that there is "nobody" defending the government's decision to deny disability is just false. It is instructive to look at this point from another perspective. The NPR story attacks disability advocates for being part of the "disability industrial complex." However, our job would not exist if the disability process was more permissive and fair to applicants. Disability advocates are almost all paid on a contingency fee arrangement, where the advocate collects the fee only when the disabled individual wins his disability case.  A person does not need to hire a disability lawyer until after his initial claim is denied. It then takes over a year to have a hearing before a disability judge.  During that time, the disability advocate will develop the individual's case by helping to collect evidence (like medical records, school records, and doctors' opinions) and then will prepare the individual for a hearing before an Administrative Law Judge. Only after getting an expert advocate to help develop their case, many of these individuals who were initially denied are ultimately granted disability. Without the advocate, they would never get the benefits they need to survive.  In many cases, these benefits were paid for by the claimant's out of their paychecks, and Social Security disability functions as an insurance system.  To attack the advocates is unjust. Finally, the NPR story makes a point about the increase in disability beneficiaries, and attempts to link that increase to unemployment and other economic factors.  The Open Letter from the Commissioner points out that this rise in beneficiaries was "predicted by actuaries as early as 1994 and is mostly the result of two factors: baby boomers entering their high-disability years, and women entering the workforce in large numbers in the 1970s and 1980s so that more are now 'insured' for Disability based on their own prior contributions." The Commissioners correctly point out that the NPR story sensationalized the growth of the disability roles, and fails "to tell the whole story" about Social Security disability.  With an ageing population and higher percentage of the population working through middle-age, there is bound to be an increase in disability. The article ignores these obvious demographic points in favor of a thesis regarding unemployment and welfare, and it badly misses the mark. We here at O'Malley Tunstall are proud of our work on behalf of disabled individuals. The world has dealt a difficult hand to many of our disabled clients, and every day we fight for their benefits that were wrongfully denied.  There will always be challenges with any system of disability adjudication, and there will always be disabled individuals who need expert help managing that system. No matter what, we will stand by the injured, infirm, and the ill to ensure that they get the benefits they deserve. Social Security Disability Specialist -- Susan O\'Malley If you or a loved one has been denied Social Security disability or has questions about the disability process contact us.

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