Thank you, Mr. Juhoff … and all the Mr. Juhoffs

bigstock-Thank-You-46347529Disability Dunk Tank has existed for a very short time, however, I have been amazed at the numbers of people reading it.  I cannot begin to thank you all enough.

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?”bigstock-Man-holding-arms-up-in-praise--14031791

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 bigstock-Female-physician-checking-wris-48025592professional 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.

bigstock-Knotted-Tongues-40775197The 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?bigstock-Stressed-Businessman-41009869

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.

4 thoughts on “Thank you, Mr. Juhoff … and all the Mr. Juhoffs

  1. Anonymous

    Thank you for your eloquent and heartfelt response. I suppose I should make clear that I do not necessarily deny a claim when the representative has submitted a medical source statement I consider worth little to no weight. It is just that I feel the medical source statement has become useless noise.

    I will preface my next remark by saying, before I was an ALJ, I represented claimants for almost 20 years. I think a great many representatives would be surprised at what they could accomplish by talking to doctors, either in person or on the phone, to develop medical source statements that are individually tailored to the claimant and address all of the concerns an ALJ might have about the case.
    What bothers me is that these claims are potentially worth hundreds of thousands of dollars in future cash and medical benefits to the claimant, yet representatives do not take the time to develop the case and generate evidence helpful to their clients. Assume an attorney representing a client in a tort claim or medical malpractice claim with a potential payout of $500,000. Would that attorney rest on a one page cookie cutter form she asked the client to deliver to the doctor? Or would she make an appointment with the doctor, pay him for his time, prepare him for his deposition or court testimony, and then present meaningful, helpful testimony to the trier of fact? Obviously, you are unlikely to get a doctor to appear and testify at a disability hearing, but you can do something similar by preparing helpful written statements.

    Again, I appreciate your blog and your obvious passion for your clients. (Now, if only you could get a spellchecking function on these comments…)

    Reply
  2. Anonymous

    Two points:

    As an ALJ, I cannot simply ignore the prescription pad scribble that says, “My patient is disabled.” Per the dictates of SSR 96-2p, I can never ignore such an opinion; rather I must concede it is entitled to no special consideration but nonetheless must evaluate it to see if it is consistent with the medical evidence of record. Were I to, as you put it, ignore it, you would no doubt holler to the AC that doing so is reversable error. And you’d likely be correct.

    The vast majority of medical source statements I see are worthless and are entitled to little weight, not because I assume they are the result of a sympathetic doctor, but because they offer extreme limitations without explanation or reference to clinically acceptable medical signs and laboratory findings. Second, they are almost never consistent with the contemporaneous treatment notes. This is particularly true in the realm of mental health providers. For example, take the depressed patient who visits her treating psychiatrist once a month. There will literally be dozens and dozens of visits noting normal attention, concentration, memory, and thought processes, yet the doctor will check a box that indicates an extreme limitation in concentration, and the representative submitting the medical source statement makes no effort to address the inconsistency.

    So, under the standards of 20 CFR 404.1527 and 416.927, I accord these statements little weight because they fail in the supportablity and consistency criteria, even though the other criteria (treating specialist)would normally weigh in favor of according the opinions great (or greater) weight.

    What frustrates me as an ALJ is the seeming inability of representatives to grasp this point and their failure to obtain and submit medical source statements worthy of consideration. The practice in my area is to have the claimant to bring a one or two page one-size-fits-all checkbox form to the doctor and have the claimant ask the doctor to complete it and fax it to the representative. As a practice, it might work to obtain the opinion in the first place, but it seldom results in an opinion worthy of significant weight.

    I do enjoy your blog

    Reply
    1. disabilitydunktank Post author

      Judge,

      My mother was the hardest, most emotionally distant person I have ever known. She never told anyone in our family she loved us. Not my dad, not my siblings, not me. Upon her death, I was helping to go through her things and found dozens of incredibly emotionally expressive greeting cards – birthday cards, “just because” cards – clearly meant for all of us – saying “daughter,” “son,” “my dear husband.” All left blank. For reasons I will never understand, she could not bring herself actually to sign the cards and give them over.

      Those blank, never-sent cards are all I have to inform me of something potentially true about her feelings. They are imperfect, and inadequate to be sure, but I am disinclined to reject what they reveal.

      Finding those cards brought me to imagine my mother standing at card displays, reading over the cards, thinking of us, perhaps wishing they could say what she, in her day-to-day life, could not … putting them in the drawer. Maybe she thought of the cards on our birthdays, but just couldn’t bring herself to give them. Maybe she forgot them completely. I don’t know.

      Your frustration as an ALJ with medical records, and with their failure to reveal a clear answer to the question of whether the claimant is disabled is one we share. Your frustration that the medical records and the medical source statements are disconnected is one we share. I do grasp the problem. But, if you view ‘not obtaining and submitting medical records and medical source statements worthy of consideration,’ as a failure, I guarantee you I will fail at that, and fail, and fail, and fail – without fail. I have no control over it.

      I cannot control how physicians make and keep their records. What physicians write is for themselves, for their purposes – not for our purposes. Trying to use their records to our ends is unimaginably frustrating. We – the ALJs, the attorneys, the claimants – are united in our frustration with medical records.

      A tough ALJ I know became less tough (for a spell) after he had the following experience: already an elderly man, the judge had injured his leg (I believe a broken ankle). His physician told him, ‘this is a “walking cast,” but I do not want you walking or standing for any length of time, I don’t want you working full days, I want you to lie down and put that foot up throughout the day ….’ The doctor then jotted something in the record. The ALJ asked, “what did you write down?” “Doing well on current medication,” said the doctor.

      Ahhh … the sweet nothings of medical records.

      I showed my mother’s expressive greeting cards to my siblings – to their utter amazement.

      If my sisters or my brother had said, “well, why didn’t you get her to say she loved us? Why didn’t you get her to sign these?” If a sibling said, “I can never ignore such a card; rather I must concede it is entitled to no special consideration but must evaluate it to see if it is consistent with the evidence of how Mom conducted herself at family gatherings….” I couldn’t do anything with that. I would have to throw up my hands, and just be frustrated that my sibling didn’t get the poetry of it all.

      If a judge is inclined to believe the human beings coming before her are likely scammers, the skeletal poetry of medical records will be unconvincing. If, however, a judge sees before her ‘there but for the grace of God go I’ human beings … if she sees the unlikelihood of people choosing this – that it is too hard a path for someone who could work – the utterly cadaverous communication of medical records … are blank greeting cards saying “I did love you all.” It is so important that we do not miss the forest for the trees.

      Thank you so much for engaging so beautifully in this consequential conversation.

      Reply
      1. Anonymous

        I consider the “my patient is disabled” statements in conjunction with the rest of the record. They tend to indicate the physician believes the patient. You cannot hang your hat on it, but it is something. They are not aggravating.

        Attorneys who argue symptoms as clinical signs or laboratory findings are aggravating.

        Reply

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