Whatever theory of disability you will be using to try to convince Social Security that you meet SSA’s definition of disability, you will need evidence. Evidence can come in many forms, including medical evidence, non-medical evidence and, of course, your testimony. Without medical evidence, however, the SSA adjudicator or judge will have no way to evaluate whether your condition is “medically determinable” as set out in SSA’s definition of disability.
Let’s focus on the medical evidence you will need.
Social Security adjudicators and judges look at three things when they evaluate medical evidence:
- consistency – have you been under regular and consistent medical care since the onset date of your disability or longer?
- presence of objective evidence – if applicable for your medical problem, is there objective evidence of your medical problem. Examples of objective evidence include MRI reports, CT scan reports, X-rays, pulmonary function test results, cardiac function reports, blood tests, ultrasound reports, nerve conduction study test results, liver function test results, kidney function test results and other medical tests that clearly document medical issues
- statements in the medical record from your doctors that address your capacity to function at work
Consistent Medical Treatment
Social Security adjudicators and judges are under a great deal of pressure from members of Congress to only approve deserving claimants. Obviously every person who files for disability believes that he/she is disabled so even the most heartfelt and sincere description of your medical issues and associated complications will not be enough to win your case.
Instead State Agency adjudicators and disability judges are instructed to rely on a long history of compelling medical evidence.
I have had judges say to claimants “I believe what you are telling me about your pain, medication side effects and other limitations, but without medical evidence I can’t approve your case.”
I would take this idea even further – my experience has been that if you do not go to the doctor on a regular basis, the adjudicator or judge will conclude that your condition must not be that serious.
Your response and that of many others may be “what about the high cost of medical care and the high cost of insurance? It is not fair that my case should be denied because I have no money or access to medical treatment!” I agree that it is not fair but this is the reality of Social Security law.
Under the law, the Social Security Administration has an obligation to “develop” your medical record to properly evaluate your case. In reality, they do this by send you out to consultative evaluations and having whatever record you have reviewed by a medical consultant. In most cases, the courts have concluded that this meager effort by SSA is sufficient.
I can tell with certainty that if the only evidence in your record is a 30 minute evaluation of your back pain by an industrial clinic doctor, and a review of this record by a retired doctor who works as a consultant for SSA, you are not going to win.
One way or the other, if you hope to win, you are going to need to see a doctor at least 3 or 4 times per year. ER visits usually won’t help you much, and family doctor visits often won’t help much either. In 2019 and beyond you need to seek some sort of regular treatment with a medical specialist who will agree to comment about how your medical problems impact your capacity for work.
There are no good answers to the question “what do I do if I have no money?” At a minimum you should find out about free or low cost clinics in your area. You should also reach out to private doctors to see if any have any “scholarship” or “pro bono” offerings – several of my clients have done this.
This disconnect between access to medical care and SSA’s demand for consistent and on-going treatment records can be extremely frustrating and maddening. But you need to know what SSA needs to approve your case and consistent medical care is a major factor on that list.
Objective Medical Evidence
Over the past few years, SSA has put increasing emphasis on the presence of objective medical evidence as a requirement for approvals. Certainly if you have a medical condition that can be imaged, SSA will expect to see an image.
By imaging, I am referring to tests such as MRIs, CT scans, pulmonary function tests, cardiac tests, ultrasounds, blood tests, organ function tests and other proof that your medical condition exists at a potentially disabling level.
Even mental health conditions such as depression, anxiety, PTSD, bi-polar disorder and schizophrenia can be documented by various tests performed by psychologists, psychiatrists, neurologist and neuropsychologists. Although there is some subjectivity to these tests, they include questions designed to expose malingering and exaggeration and SSA will rely on these medically accepted tests.
If your condition cannot be directly observed, you will have a reduced chance at winning. This is why conditions like fibromyalgia, CRPS, Lyme disease and other diseases that are diagnosed indirectly are much more difficult (but not impossible) to win.
Finally, if the symptoms you describe are not consistent with the level of impairment shown on that MRI or CT, you will need a good explanation as to why the judge should believe you.
The take away from all of this is that the stronger cases are supported by objective medical evidence that shows a disease or condition consistent with the level of impairment you allege.
Statements from Medical Providers About Your Work Capacity
I often explain to my clients that one of the tasks that your judge must undertake involves translating medical evidence into specific work limitations. For example, if your medical records shows that you have a herniated disc at L4/5 and you testify that you experience radiating pain into your left leg and that you can only sit for 10 to 15 minutes at a time before you need to stand and walk for 5 to 10 minutes, what does that mean in terms of your capacity and reliability at a simple, entry-level job.
The judge has to decide if he believes that your level of impairment is consistent with what the MRI and medical records show, and what that means in terms of your capacity to perform the duties of that simple, entry level job.
In my experience, we can make the judge’s life a lot easier by asking your long time treating doctor (ideally a specialist) to complete a functional capacity evaluation to addresses these work activity and reliability questions.
Social Security gives its medical consultants an abbreviated version of a functional capacity evaluation – in my practice I have created my own forms for most of the serious conditions I see frequently. These forms ask the doctor about both the job performance implications of the medical condition impacting my client, and about the attendance and reliability issues my client would likely face going forward.
In the absence of a functional capacity evaluation from, you will need to identify in the record statements from your doctor that talk about your physical and mental health limitations. My experience, however, has been that most doctors focus on medical issues only in their notes, while Social Security focuses on the vocational implications of those medical issues.
The take away from this is that the stronger cases include one or more supportive functional capacity evaluations from long time treating doctors.
You Need Consistent and Supportive Medical Evidence to Successfully Present a Functional Capacity Argument
When you are making a reduced functional capacity argument to a Social Security disability judge you should remember that SSA defines disability in terms of how your medically determinable medical problems prevent you from engaging in substantial gainful activity.
Disability for Social Security purposes is not about your medical problems – it is about how your medical problems keep you from working and your medical record is the foundation for your functional capacity argument.