Social Security Disability Attorneys: OC, Riverside & San Bernardino
A “treating doctor's” medical records and his/her disability opinions are extremely important to obtaining long term disability (LTD) benefits under the Social Security Disability program (SSDI) or under an employer-provided group disability policy (ERISA).
Unfortunately, we see situations where there is little or no communication between a patient who is applying for LTD benefits and the treating physician(s) whose disability opinion is so important to a favorable ruling. In fact, sometimes patients don't even tell their treating doctor that they are applying for disability benefits, or the treating doctor refuses to fill out disability forms.
Inform Your Treating Doctor
Always inform your doctor, and in fact all your treating doctors that you are applying for disability benefits at the earliest opportunity. Explain to each treating doctor what symptoms you have and how your symptoms impair your ability to perform your job, and enlist that doctor's support.
After you have done that, ask each of your treating doctors to document that information in your medical records. Do that at every office visit. It's important that your medical records are consistent and that all your treating doctors are “on the same page” in documenting your symptoms and functional impairments.
If your medical records are consistent in documenting your disability from doctor to doctor and from one office visit to the next, that will create credibility, which is critically important to successfully obtaining an award of disability benefits.
In Perryman v. Provident Life & Accident Ins. Co., 690 F. Supp. 2d 917. 944 (D.Ariz. 2010), the court found that when all the examining and treating doctors believed the claimant was disabled, a non-examining doctor's opinion favoring non-disability was unpersuasive. (“The court is unpersuaded by Provident's contention it should discount virtually all of the medical evidence provided by Perryman's treating physicians.”)
A Treating Doctor's Opinion
While a treating doctor's opinion is not determinative or controlling as to whether an insurer or a judge will grant your disability application, it is of great importance.
Under Black & Decker Disability Plan v. Nord, 338 U.S. 832, 834 (2003), the United States Supreme Court held that the opinions of treating physicians are not necessarily entitled to “special weight.” In other words, the disability opinions of other doctors are relevant and must be considered, including consulting doctors (such as insurance company doctors) who have never seen or examined the applicant and have only reviewed their medical records (“paper review”).
However, the opinions of treating doctors may not be ignored because courts recognize that treating physicians, in contrast to reviewers evaluating a medical file, have “a greater opportunity to see and observe a patient as an individual.” Id. Courts have held that an insurer may not simply ignore relevant and consistent medical evidence from treating doctors simply because it doesn't fit with its benefits-denial decision. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011).
Although, under Nord, the court cannot give controlling weight to a treating doctor's disability opinion, the court may give significant weight to the opinions of a claimant's treating doctors when (a) there is a long-standing patient-doctor relationship with that doctor, (b) a doctor possesses special expertise and training in a given field of medicine, and (c) a doctor's opinions are consistent and compatible with the opinions of other treating doctors and the evidence in the medical record as a whole. Perryman v. Provident Life & Accident Ins. Co., 690 F. Supp. 2d 917, 944 (D. Ariz. 2010).
In Lavino v. Metropolitan Life Ins. Co.,779 F. Suppl 2d 1095, 1112-1113 (C.D. Cal. 2011), the court held that where the “treating physician's disability opinion is unequivocal and based on a long term physician-patient relationship, reliance on a non-examining physician's opinion premised on a records review alone is suspect and suggests that the insurer is looking for a reason to deny benefits.”
When disability claims are based on subjective symptoms, such as chronic pain, headaches, or fatigue, Ninth Circuit courts have held that the opinion of non-examining physicians, when evaluating the disabling effects of conditions such as chronic pain or fatigue, may be entitled to less weight when compared to the opinions of treating physicians who have actually examined the patient. Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 634-635 (9th Cir. 2009).
While paper reviews are not inherently objectionable, Siegel v. Conn. Gen. Life Ins. Co., 702 F. 3d 1044 (8th Cir. 2012), an insurer's decision not to perform an independent medical evaluation (IME), if allowed by the policy, “raise[s] questions about the thoroughness and accuracy” of its benefits determination. Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 630, 634 (9th Cir. 2009). This is especially true when evaluating a subjective complaint, such as disabling pain and assessing the credibility of a claimant when reporting that pain. Smith v. Continental Cas. Co., 450 F.3d 255 (6th Cir. 2006) (credibility findings concerning subjective complaints without a physical exam was improper); Shaw v. AT&T Umbrella Plan 1, 795 F.3d 538 (6th Cir. 2015); Schramm v. CNA Fin. Corp. Insured Group Benefits Program, 718 F. Supp. 2d 1151, 1164 (N.D. Cal. 2010) (“The court gives little weight to the opinions of (doctors) ... who are not examining plaintiff in person.”)
In Cotton v. Bowen, 799 F.2d 1403, 1407-1408 (9th Cir. 1986), the court held that an insurer “should not reject subjective claims of excess pain based solely on a paper review's observation that a physical impairment should not cause the claimant as much pain as he was reportedly suffering.” Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 634-635 (9th Cir. 2009).
Therefore, there are many instances when the opinion of a treating physician may be more persuasive than opinions from non-examining physicians. However, in order to be persuasive, it must be credible.
Consistency creates credibility. In order for a treating doctor's opinion to be considered credible, it must be consistent from office visit to office visit, and consistent with the opinions of all other treating doctors as to a claimant's diagnosis, symptoms, and the disabling effects of those symptoms on a claimant's ability to work.
A claimant's credibility in reporting his/her symptoms and their disabling effects must also be credible. They must be consistent from office visit to office visit, and from doctor to doctor.
When an ERISA insurer denies a disability claim for benefits based on subjective symptoms such as chronic pain by concluding the claimant has “excess pain” or that “the insured's reported level of pain is above that expected with the radiographic changes described,” implicit in that denial is a rejection of a claimant's credibility in reporting their pain.
Insurers may deny disability claims based on subjective symptoms without any evidence or explanation as to why a claimant's credibility in reporting those symptoms would be lacking. Demer v. IBM Corp. LTD Plan, 835 F.3d 893 (9th Cir. 2016) (“... MetLife ... was implicitly rejecting Mr. Demer's credibility based solely on a paper review ... and without explaining why Mr. Demer's credibility was lacking ...”)
However, an insurer cannot simply discount a claimant's pain complaints, fail to give those complaints adequate attention, refuse to assign any weight to them, or fail to give specific reasons to discount them. Miles v. Principal Life Ins. Co., 831 F. Supp. 2d 767 (S.D.N.Y. 2011).
Disabling pain, even if self-reported or arguably self-serving, cannot be discounted. Krupp v. Liberty Life Assurance Co. of Boston, 936 Fed. Supp. 2d 908, 917 (N.D. Ill. 2013).
Your credibility and the credibility of your treating doctors will be enhanced by having consistency in your medical records. You can help create that consistency by “telling the same story” about your symptoms and how they impair your ability to work each time you see your doctor and each time you see your other doctors.
Inconsistent medical records, where different doctors have different documentation about your symptoms and your disability, can be highly damaging to your disability claim.
At Law Med, we understand how to work with your doctors to help you get the SSDI and ERISA benefits that you deserve.