Obtaining Medical Opinion Evidence
By Thomas E. Bush
Looking for a residual functional capacity form or a cover letter to accompany a questionnaire being sent to a doctor for a Social Security disability case? The documents described and boldfaced in this article are available by clicking on the form’s name.
The most important thing your team does in a client’s case might be getting an opinion from the client’s doctor about the nature and severity of the client’s impairments — symptoms, diagnosis, prognosis — what the client can still do despite these impairments, and the client’s physical or mental restrictions (see 20 Code of Federal Regulations §404.1527(a)(2)). Indeed, under Social Security Regulations, the claimant’s doctor provides the most important medical opinion evidence. The doctor’s opinion may be given “controlling weight” in the case (see 20 C.F.R. §404.1527(d)(2)). That is, the Social Security Administration will adopt the doctor’s opinion as its own.
The SSA imposes several requirements to get to the point where a doctor’s opinion is given controlling weight. First, not all doctors qualify. The doctor must be an “acceptable medical source.” Acceptable medical sources are physicians (medical or osteopathic doctors), psychologists (including school psychologists), podiatrists, optometrists and qualified speech-language pathologists (20 C.F.R. §404.1513(a)). Other medical professionals fall into the category of “other sources,” and their opinions don’t carry the same weight as professionals deemed “acceptable” by the SSA. These include chiropractors, nurse practitioners, audiologists, therapists, etc. (20 C.F.R. §404.1513(d)). According to Social Security Ruling 06-3p, opinions from other sources may be evaluated using the same factors used in weighing the opinion of an acceptable medical source described in 20 C.F.R. §404.1527(d). Although it’s possible, depending on the facts of the case, for an opinion from an “other source” to be given greater weight than that of a “treating source,” such an opinion can never be given controlling weight.
To be entitled to have an opinion given controlling weight, the claimant’s doctor must be a “treating source.” Thus, an attorney can’t send a claimant to be evaluated by a doctor one time and expect that the doctor’s opinion will be given controlling weight. “We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability” (20 C.F.R. §404.1502). Such a doctor, just like the consultative physician who examines the claimant for the SSA, is referred to in the SSA’s lexicon as a “nontreating source.” (In disability cases, there also are doctors who neither treat nor examine a claimant, e.g., a state agency doctor, referred to as a “nonexamining source.”)
In addition, to be given controlling weight, the treating doctor’s opinion must be well-supported by medically acceptable clinical and laboratory diagnostic techniques (20 C.F.R. §404.1527(d)(2)). If a treating doctor’s opinion is (1) well-supported by medically acceptable clinical and laboratory diagnostic techniques; and (2) is not inconsistent with other substantial evidence in the case record, it must be given controlling weight (SSR 96-2p). According to SSR 96-2p, to be “well-supported” by medically acceptable clinical and diagnostic techniques, it’s not necessary that it be “fully supported.” Thus, informed judgment must be exercised to determine the extent to which the opinion is supported. Further, the SSA chose the words “not inconsistent with other substantial evidence” to indicate that the medical opinion need not be consistent with all other evidence as long as no other substantial evidence contradicts or conflicts with the opinion (SSR 96-2p).
Frequently, you will see cases in which the only evidence inconsistent with the treating doctor’s opinion is the opinion of a state agency doctor. Can the argument be made that the treating doctor’s opinion should be given controlling weight? The answer must be yes; otherwise, no treating doctor’s opinion could ever be given controlling weight. Nowhere in the regulations or rulings does the SSA clearly explain that when evaluating whether to give controlling weight to a treating doctor’s opinion, one doesn’t need to consider the opinion of a state agency doctor, but 20 C.F.R. §404.1527(f)(2)(ii) provides that a decision maker must explain in the decision the weight given to a state agency doctor’s opinion “unless the treating source’s opinion is given controlling weight.”
If a treating doctor’s opinion is not given controlling weight, it doesn’t mean that the opinion must be rejected. It may still be entitled to deference and may be adopted by the decision maker. As a rule, more weight is given to a treating doctor’s opinion that explains reasons for conclusions rather than simply asserting that the patient is disabled. A statement from a treating doctor saying that a patient is disabled, without more, is not worth much (see 20 C.F.R. §404.1527(e)(1)).
The SSA evaluates the weight given to a treating source’s opinion by considering the following (see 20 C.F.R. §404.1527(d); see also SSR 96-2p):
The SSA takes the position that its job is determining disability, which is a legal conclusion based on age, education and work experience, as well as medical evidence. The SSA views the treating doctor’s role as providing information concerning the degree of medical impairment (see 20 C.F.R. §404.1527(e)). To underscore this distinction, SSR 96-5p refers to a doctor’s description of a claimant’s capacity for work as a “medical source statement” and the administrative finding about a claimant’s capacity as a “residual functional capacity assessment.”
It’s seldom necessary in preparing or presenting a client’s case to ask a treating doctor whether a patient is disabled. By not asking this question you may avoid two problems. First, you avoid giving the impression that your primary concern is the bottom-line conclusion about disability with the upshot that the treating doctor ignores your other questions and responds with a useless one-line letter indicating that your client is disabled. Second, not raising the issue will discourage the treating doctor from getting hung up on the question of disability, a pitfall to be avoided. After all, not many doctors think that a 55-year-old man is disabled who, although incapable of his past work, is nevertheless capable of a full range of light work. But such a person, if he doesn’t have any transferable skills, is disabled according to the SSA’s Medical-Vocational Guidelines (see Rules 202.01, 202.02, 202.04 and 202.06).
The SSA gathers medical information from treating sources in a variety of ways. Sometimes it merely requests copies of office notes and test results. Sometimes it sends detailed questions in interrogatory form. Sometimes a state agency physician telephones the treating doctor and writes down what is said in a “report of contact.”
Beware of these “reports of contact.” They may contain implicit or explicit conclusions not intended by the treating doctor, despite the fact that the “report of contact” may have been sent to the doctor for signature and it may have been signed and returned to the state agency. Needless to say, the existence of an inaccurate “report of contact” presents a very delicate problem to be dealt with by the attorney when requesting a report from the treating doctor. If you ignore the “report of contact,” you are likely to get a decision from the Administrative Law Judge questioning the credibility of a doctor who tells the state agency one thing and the claimant’s attorney another. Explaining a misleading “report of contact” is one issue that must be addressed by the treating doctor in a report obtained for submission as a hearing exhibit.
Presenting live testimony of the treating doctor at a hearing may be the most effective way to get the treating doctor to address all the issues and win the client’s case. Unfortunately, most doctors have difficulty fitting an appearance at a hearing into their busy schedules, and the relatively small amount of back benefits in a disability case may not justify the expense to the client. Thus, in the usual case, it’s necessary to seek a more economical way of obtaining the doctor’s opinion.
There probably is no single best way to obtain the opinion of a treating source. The following sections describe some options.
Take the doctor’s deposition. In complicated cases, where you want to be sure that the doctor answers numerous questions, your legal team can take the doctor’s deposition and submit the transcript as a hearing exhibit. If you want to avoid the expense of paying a court reporter, simply tape record a conversation with the doctor, in person or by telephone, and have the tape recording transcribed. Then, have the doctor sign the transcript and submit it as a hearing exhibit.
Attorneys who have video cameras and playback equipment sometimes videotape an interview of the physician and play the videotape for the ALJ at the hearing. Preparing a written transcript is optional since the hearing is recorded. The hearing recording will include the doctor’s previously recorded testimony.
Send the doctor specific questions. Another approach is to develop specific medical questions based on the issues in the client’s case. These questions may be sent to the treating doctor in a letter or they may be developed into interrogatories or forms for the doctor to complete. Keep in mind that medical issues may be complex and attorneys often have difficulty framing medical questions. For these reasons, as well as the good lawyering rule, “Never ask a question to which you do not know the answer,” it often is best to call the doctor to discuss the issues before writing the questions for the chosen method of obtaining this information, whether deposition, forms, letter or interrogatories.
Request a general medical report. Some attorneys use a form letter request for a medical report that asks the doctor to address all the elements of the client’s medical condition and disability, as identified in the SSA’s regulations on the content of medical reports (see 20 C.F.R. §§404.1513(b) and (c); please note “you” refers to the client):
(b) Medical reports should include —
(1) Medical history;
(2) Clinical findings (such as the results of physical or mental status examinations);
(3) Laboratory findings (such as blood pressure, X-rays);
(4) Diagnosis (statement of disease or injury based on its signs and symptoms);
(5) Treatment prescribed with response and prognosis; and
(6) A statement about what you can still do despite your impairment(s) . . . .
(c) Statements about what you can still do. Statements about what you can still do (based on
(1) The acceptable medical source’s opinion about your ability, despite your
(2) In cases of mental impairment(s), the acceptable medical source’s opinion about
Such a report, if well done, can be invaluable to the case. But most reports of this sort will repeat uncontroverted facts already of record in your client’s case rather than focusing on the contested issues. The best reports of this genre also are time-consuming for the doctor to prepare, adding additional expense to your client’s case. And when you ask a doctor to prepare an extensive report, you run the risk that your request will be put aside to be done later when the doctor has more time, which may mean there will be a delay in getting the report.
Medical opinion forms can be great time savers for both the legal team and the doctor, but they must be used with care. Forms may not be appropriate at all in complex cases, and they need to be supplemented in many cases so that all issues are addressed. The best forms are clear and complete, but not too long.
The forms that accompany this article include a set of residual functional capacity forms for specific impairments that, in the author’s experience, usually work better than any alternative. Nevertheless, when using one of these forms, make sure it is appropriate for the client’s case, and make sure that there are no additional issues that must be addressed. For example, onset date is a common additional issue that is not addressed in most of the specific impairment RFC forms. Indeed, onset date is not an issue in, perhaps, a majority of cases. If you ask an onset date question in each case, you inadvertently may create an onset date issue based, for example, on a doctor’s answer that merely states the first date the doctor saw your client. Therefore, when you need a doctor’s opinion about onset date, it’s best to add a question. In my office, many of the RFC forms exist in two versions — one with and one without an onset date question. Both versions are available on the Web site; the onset version is usually labeled with an “A” (e.g., §231.2A).
In the SSA’s lexicon, residual functional capacity is what a claimant “can still do despite [the claimant’s] limitations” (20 C.F.R. §404.1545(a)). The SSA asks that medical reports include “a statement about what [the claimant] can still do despite [the claimant’s] impairment(s)” (20 C.F.R. §404.1513(b)(6)). The SSA calls this opinion about residual functional capacity a “medical source statement.” A medical source statement is not to be confused with an “RFC assessment,” which is “an adjudicator’s finding about the ability of an individual to perform work-related activities” (SSR 96-5p). The SSA reserves to itself the job of making an RFC assessment. A treating doctor’s opinion must be considered by the SSA and, under appropriate circumstances, given controlling weight (SSRs 96-5p and 96-2p). It doesn’t matter whether the doctor’s opinion is called a medical source statement, an RFC opinion or a medical assessment — a term formerly used by the SSA but now disfavored. Anyone who tells you that the SSA may disregard a treating doctor’s opinion on a form with “residual functional capacity” or anything else in its title has misinterpreted the regulations and SSR 96-5p. Some lawyers, though, exercising an abundance of caution, change the title of all RFC questionnaires to “Medical Source Statements.”
Click on the form titles below to instantly download the following medical opinion forms dealing with physical impairments:
There also is the Physical Residual Functional Capacity Questionnaire, §258.1, a more general form for use when there are multiple physical impairments. TheManipulative Limitations Residual Functional Capacity Questionnaire, §263.1.1, is used when you need only an opinion about manipulative limitations.
Include a Letter to Treating Source Transmitting Residual Functional Capacity, §221.8, when you send the listed forms. It usually is a good idea to describe to the doctor what the client has told the attorney about his or her limitations so that the doctor has the patient’s description handy when completing the form. It’s good practice to write out this description when you first interview a claimant and update it as you refine your theory of the case.
Educating the claimant’s doctor about the treating doctor’s role in a disability case is an important function of the claimant’s attorney. To assist you with this task, a memorandum that you can send along with a request to complete an RFC form in a physical case is available on the LAT Web site (see Memorandum: The Role of the Treating Doctor in Social Security Disability Determinations, §221.10).
Also, some doctors, especially in physical impairment cases, interpret the SSA’s reference to findings on the physical medical source statement form as a request to state the limitations that an “average man” would have if he had the claimant’s findings. For such doctors, you must explain the correct standard if you are going to use the SSA’s forms: There must be a link between the findings and the claimant’s limitations, but it is OK to allow for differing individual tolerances for pain and other symptoms (see 20 C.F.R. §404.1545(e)).
In cases involving older claimants, where the record contains adequate evidence of medical findings and all you need to win the case is the treating doctor’s opinion that the claimant is limited to sedentary, light or, in rare cases, medium, work, a simple check-off form is provided in Medical Opinion Regarding Physical Capacity for Work, §221.9.
Before any completed form is submitted to the ALJ, make sure it is reasonable in light of the objective findings, internally consistent, and consistent with other evaluations by the same author. If it appears inconsistent, ask the doctor for clarification.
When is the best time to request an opinion from a doctor? Many attorneys wait until they have reviewed the file and the hearing is scheduled before requesting an opinion from the treating doctor. This has two advantages. First, by waiting until the file has been fully reviewed, the legal team will be able to refine the theory of why the client can’t work and will be better able to seek support for this theory from the treating doctor. Second, the report will be fresh at the time of the hearing.
But this approach also has some disadvantages. When there is a long time between when you first see the client and the date of the hearing, a lot of things can happen. The client can improve and go back to work. Although you can seek evidence supporting a finding that your client was disabled for a certain length of time, this puts you in the position of asking the doctor to give a description of the client’s ability to work at some time in the past, something at which not all doctors are good. The client can change doctors, or worse, stop seeing doctors altogether because his or her medical insurance has run out. When you write to a doctor who has not seen your client recently, you run the risk that the doctor will be reluctant to complete the form. Doctors seem much more willing to provide opinions about current patients than about patients they have not seen for a long time.
Here is an alternative. Consider requesting completion of an RFC form by the treating doctor on the day your client retains your attorney. This will provide a snapshot description of the client’s RFC early in the case. If the client improves and returns to work, the description of your client’s RFC provides a basis for showing that your client was disabled during a closed period of disability. If the client changes doctors, you can get an opinion from the new doctor, too. If the client stops seeing doctors, at least there is one treating doctor’s opinion and the client’s testimony can be presented at the hearing to establish that the client has not improved. If the client continues seeing the doctor and it has been a long time since the doctor’s opinion was obtained, then just before the hearing send the doctor a copy of the form completed earlier along with a blank form and a cover letter asking for completion of a new form if there are significant changes in the patient’s condition. If there are none, ask the doctor to send your attorney a one-line letter that says there have been no significant changes since the date the earlier form was completed.
There are times, though, that you need to consider not requesting a report early in the case. First, depending on the impairment, if the client has not been disabled for 12 months, it usually is better to wait until the 12-month duration requirement is met. Second, if the client just began seeing a new doctor, it usually is best to wait until the doctor is more familiar with the patient before requesting an opinion. Third, if there are competing diagnoses or other diagnostic uncertainties, it usually is best to wait until the medical issues are resolved before requesting an opinion. Fourth, it might be best to wait if there is a really difficult judgment involved for a client whose medical history has many ups and downs (e.g., several acute phases, perhaps including hospitalizations, followed by significant improvement). In this type of case, an opinion should be requested at a time when the treating doctor will have the best longitudinal perspective of the client’s impairment.
Be prepared the next time your team needs to determine medical opinion evidence for a Social Security disability hearing. Knowing the controlling weight factors and the differences between disability and impairment will start your team on the right track. Strategies for obtaining a medical opinion, working with medical opinion forms and timing will all help determine the best ways of moving forward with the case and working with the SSA, and will make your paralegal role invaluable to the team.
Thomas E. Bush has devoted his practice to Social Security disability issues since 1977. He was elected to the National Organization of Social Security Claimants Representatives’ Board of Directors in 1988, and was president for the 1997-1998 term. He is the author of “Social Security Disability Practice,” from which this article is excerpted.