I know this is a niche topic. I know the posts are long. And, I know what I say sometimes flouts commonly held beliefs. And, people don’t easily subject themselves to ideas that challenge their beliefs. I know that; I am guilty of that. So, again, thank you.
Moreover, I am extremely pleased with the caliber of comments and questions Disability Dunk Tank has received both publicly posted, and privately emailed. Absolutely each one has been interesting, thoughtful, and respectful. Thank you, thank you, thank you.
In response to So much bullpucky … so little time a commenter going by the name of Robert Juhoff asked engaging questions that have me thinking … and understanding something a bit better than I did before.
In bullpucky, one of the observations I made was that I often encounter claimants who applied for disability benefits on the suggestion of physicians who may be extremely knowledgeable of medicine, but who don’t know the legal definition of “disability” used by Social Security, and whose advice to apply was wrong-headed.
Mr. Juhoff asked, “[d]on’t these observations which appear to paint a number of treating physicians as sympathetic advocates for their patients call into question the wisdom of Social Security regulations that place a significant premium on treating source opinions? Because lawyers are generally more attuned to disability requirements than doctors, isn’t there a tremendous incentive for claimants’ representatives to exploit a doctor’s sympathies by asking him/her to simply check a box indicating that the claimant’s pain prevents him/her from being able to focus on tasks for two-thirds of the workday or sit for more than fifteen minutes without lying down? In your experience, are there any professional repercussions for doctors who “just sign on the dotted line,” so to speak?”
Interesting observations and questions!
I responded with, “I have not observed your underlying premise to be true, i.e., that treating physicians are sympathetic advocates – even when they tell a patient to file for disability….” Did that answer your question?”
Mr. Juhoff wrote, “Yes, thank you for responding… it’s good to hear another perspective. I think my own perception might be skewed by the sample size.”
First of all – WOW! Civil discourse … “it’s good to hear another perspective.” What?!? Oh my gosh … learning from each other …. I thought high-quality public discourse like that had gone the way of Lawn Darts.
My heart is unbreaking.
My personal experience with needing forms completed by doctors is in the context of my children’s pediatricians – forms for school, camps, and participation in sports. Most well-run pediatricians’ offices have a system for the completion and delivery of immunization records, “well-child” or “pre-participation” forms. My pediatrician’s policy is that you may have one copy per paid appointment, but if you request another copy (before your next paid visit) they charge a fee. Pediatricians’ offices have a system for producing these forms, because virtually all their patients need them, school districts require them, and it’s simply part of the service pediatricians’ offices reasonably must provide.
Physicians I encounter professionally as an attorney asking whether they would be so kind as to complete one of my questionnaires called “Medical Source Statements,” are exceedingly unlikely to grant my requests.
Physicians are notoriously pressed for time, the questionnaires are outside their customary professional responsibilities and services, and doctors I know personally, tell me they often don’t know the answers to the questions about their patients’ functional capacities. Functional capacities are things like how much weight can the patient lift or carry occasionally, frequently, continuously; objectively how much pain does the patient have; does the patient require breaks, and if so, how often and for how long; is the patient limited in the abilities to interact with the public, maintain socially acceptable behavior, complete a normal work day without interruptions from symptoms. Those kinds of things.
Most physicians’ offices don’t respond at all to my requests to complete a Medical Source Statement. When I call to follow-up, office staff inform me of their policy not to complete such forms. Some physicians return the questionnaire having written on it, ‘see medical records,’ or ‘these require disability specialist.’ One doctor called me and said, “stop sending me these things. I’m not going to fill them out. I could get sued.” And, I suppose there is a possibility that a questionnaire could be used in two contexts – one towards proving disability, and another towards proving medical malpractice. Those would be dire “professional repercussions for doctors who ‘just sign on the dotted line.’ I get it.
Physicians really are incredibly busy, and have many good and legitimate reasons for not completing Medical Source Statements. Doing so is not compulsory. I completely understand why physicians don’t complete them, and I am terrifically appreciative when they do.
Twice I had clients’ physicians call me to offer to write a letter informing Social Security of their professional opinion of their patients’ functioning. I believe I soiled myself.
Mr. Juhoff’s comments gave me a sense of what is behind what I have noticed over the years – that Social Security workers and judges don’t trust the Medical Source Statements, and give them little weight. That the statements are viewed as the result of attorneys “exploit[ing] a doctor’s sympathies by asking him/her to simply check a box indicating that the claimant’s pain prevents him/her from being able to focus on tasks for two-thirds of the workday or sit for more than fifteen minutes without lying down.”
Full disclosure: if I could exploit a doctor’s sympathies, I would. I ain’t gonna lie. But, I have literally never gotten a client’s doctor on the telephone to attempt it. I can barely get my own doctor on the phone.
The piece about “simply check[ing] a box” is something I’ve thought quite a bit about over the years. And, while I certainly understand why some might write off check boxes as simiplistic and meaningless, I do not. Here’s why: doctors and lawyers – including judges – are not speaking the same language. Check box-type questionnaires confine doctors to weighing in on what is relevant to Social Security, and they function as interpretive devices between these two professions.
Here’s what I mean: The word “disability” is a legal term, with many, many, many legal definitions. For Social Security’s purposes the meaning of “disabled” is “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” But, for the Americans With Disabilities Act, “disabled” is “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” There are yet different legal definitions of “disabled” in Workers’ Compensation, for the Veterans’ Administration … Individuals With Disabilities Education Act, No Child Left Behind Act, the Special Olympics, et cetera, et cetera. And, of course, the word “disabled” has yet other meanings in plain, everyday, ordinary English.
So, when a doctor writes, “Dear Social Security, My patient is disabled. Love, Doctor.” It is literally meaningless to Social Security. Physicians are hamstrung from communicating in English, because … it is, in this context, insufficient to the task.
At best, judges ignore such letters. At worst, they are rubbed the wrong way by them. When judges see such a letter, he or she thinks two things: 1) you don’t know what the word “disabled” means, and, 2) back off, dude – it’s my entire job to decide whether your patient is “disabled.” How ’bout you stick to medicine?
So here we are … claimants don’t tell their doctors what’s wrong with them, medical records are minimally communicative, medicine and law do not have a common language, and check box-type questionnaires are viewed as suspect.
A bit of a Tower of Babel we have here.
I am consoled at least by the fact that Mr. Juhoff and I seem to be communicating effectively.
It’s a start.