Monthly Archives: February 2016

Is absence of evidence, evidence of absence?

“I’ll believe it when I see it,” a wise Administrative Law Judge might think … looking through the administrative record, seeking out the evidence that definitively proves up a disability case.

Woman Bending Spoon By Mind Force

But, the medical records to support a claim of disability … why … a lot of the time, they’re just not there.

Contemplating the meaning of something that does not exist is problematic.  Non-existence of evidence is evidence.  But evidence of what?

In Arthur Conan Doyle’s anthology of short stories, The Memoirs of Sherlock Holmes, the story Silver Blaze, has Holmes solving the theft of a racehorse the night before it was to race.  Famously, it is the fact that no one Holmes interviewed mentioned that the resident watchdog had barked at any time in the night.  To Holmes, this was evidence the horse was stolen by someone known to the dog.

Judges often conclude that absence of medical evidence of an impairment is evidence of absence of the impairment.

Moreover, judges conclude that absence of medical evidence of an impairment is evidence of a lack of credibility on the part of a claimant who says she has an impairment for which she has not sought treatment, and for which there is no medical documentation of the impairment’s existence.

These conclusions are potentially correct.

Or … it could be that to conclude such things would be as if Holmes were to conclude that because the dog did not bark, the dog stole the horse?

Hmmm … ….

The Centers for Disease Control and the National Institute of Health, and others recognize that arguably the most pressing concern in public health in the United States is lack of access to health care.

A Google search of “access to health care articles” pulls 359,000,000 hits on the topic.  The gist of the concern from a public health standpoint is how it implicates treatment of manageable diseases; compromises early detection of treatable, potentially terminal illnesses, such as cancer; and how risk for the spread of dangerous, infectious diseases is increased by lack of access to care.

Public health policymakers don’t consider the evidentiary implications lack of access to health care has on patients lacking that care, but lawyers and judges probably should. 

Perhaps lack of medical evidence is to be expected when lack of access to health care is one of the most pressing concerns in public health.

Social Security has considered the evidentiary implications of a lack of access to health care and counseled, in SSR 96-7p:

… an individual’s statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints …. However, the adjudicator must not draw inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering other explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment.

“Other explanations” may very well include the trenchant problem of lack of access to health care for people who have impairments that prevent them from working, and from having health insurance (or adequate health insurance) ….