One of my colleagues in the fight to help disabled individuals get their Social Security disability benefits, attorney Johnathon Ginsberg, tackles whether you have to submit unfavorable medical evidence to Social Security.

I see this frequently in cases where there was a workers’ compensation case. “Company doctors” often minimize symptoms and generate records indicating that a claimant has the capacity to return to work. Other times I see unhelpful records in cases where my client just did not “click” with his or her physician or psychiatrist.

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I do not believe that a claimant or a claimants attorney has any obligation to submit unhelpful medical records.   This issue periodically comes up on listservs that go to claimants lawyers and the general consensus among most attorneys seems to be that an attorneys obligation is to represent his clients zealously, meaning that there is no affirmative burden for that lawyer to submit unhelpful information.  I do know some lawyers, however, who take the opposite position, but it appears to me that they are in the minority.

Even Social Security judges encourage attorneys not to submit every scrap of paper when representing a claimant on a Social Security case. I have attended continuing legal education programs where administrative law judges suggest that attorneys do not submit evidence if it is not relevant.

But there is a crucial difference between not submitting irrelevant evidence,  and not submitting unfavorable evidence.

If you are disabled because of a back problem, medical records discussing your asthma, mammogram studies, or toe fungus, are probably not relevant and will only clog up your Social Security file, and make it harder to find the relevant evidence.

However, holding back relevant, but unfavorable, evidence can get you into trouble. Attorneys have an ethical duty of candor to the tribunal, which basically means we have to be honest with the judge.  Social Security cases are not adversarial proceedings: there is no attorney for Social Security on the other side to balance a claimant’s attorney’s “zealous advocacy.”  It is just you, your attorney, and the judge working together to try to figure out whether you are disabled.

Beyond the ethical issues, the simple truth is you rarely have everything you need in a Social Security case. You may have all of the available evidence, but the doctor may be unwilling to fill out a statement of limitations, or you cannot afford to have an MRI, CT scan,  or other tests done that would shed light on the case.  There is almost always an element of interpolating a person’s limitations from the limited evidence available.

So what happens if the judge thinks the attorney is holding back on  relevant evidence? The judge may be less likely to make a favorable inference  about your disability.

But, how does it help my case if the attorney  submits unfavorable evidence?

Believe me, I have seen it all: records which say that my client is  faking, drug seeking, a malingerer, a liar.   Things that I do not believe about my client  and I did not want the judge to see. However, I will still submit those records to help my client’s case.

In law school, they teach the theory of, “embrace the thorns.”  You cannot hide from bad evidence.  Because if you try to, and the judge finds the evidence later, it becomes a “smoking gun.”

Present the unfavorable evidence outright and explain it.

If I submit the evidence that says that my client is a liar, I diffuse its power. I can explain it. I can explain the context in which that statement was made. And I can provide an argument why the judge should not accept the doctor’s opinion.

Let’s talk a little bit about what evidence may be relevant. This is not a simple question and there are no absolutes in this. Even when the records of a primary care provider are not strictly relevant, I usually submit all the primary’s records because Social Security expects if your condition is disabling, you will at least mention your disability to your primary care doctor. If your primary care doctor’s records have no discussion of your disability, that in itself may be relevant!

Of course, there are exceptions: a primary care provider may completely hand-off your pain management to a specialist. In that case, the fact that the primary care provider’s medical records make no mention of ongoing pain may not be relevant. It all depends on the individual circumstances of each case.

via Are Claimants Required to Submit Unhelpful Medical Records.

Let’s say you are reviewing your Social Security exhibit file before your disability hearing and you discover that some of your doctor’s (or other records) are not there. I have mentioned before that it is not unusual for the medical records in a Social Security file to be a year or more out of date.

What can you do if the records are not complete?

You can ask Social Security to update the records. If you do not have a lawyer Social Security has a higher responsibility to make sure that your hearing is fair, which includes helping you obtain sufficient records to review your case.

Be clear with your request. If you are missing records from a particular doctor, say,

Dr. Smith’s records are missing. Dr. Smith treated me for my back problem from 2001 to 2009 and performed my back surgery. Can Social Security request these records.

If Social Security only has a partial set of records, tell them:

I see you have Dr. Jones records from April 4, 2006 through September 2008, but you are missing her records after September 2008. These records are important because …. Can Social Security request these records?

It is important to tell Social Security why the missing records are important. Social Security does not require every single piece of medical evidence to decide your case. If you want Social Security to get your records, help them understand why those records are critical.

There’s one more thing: even though Social Security has an greater obligation to unrepresented claimant’s (that’s you), it is not Social Security’s duty to obtain evidence. You have the duty to provide evidence to prove your disability.

So, don’t go demanding that Social Security get this or get that, or get all your records for the last 30 years. It won’t get you anywhere.

Be respectful, explain why the records are critical in a fair evaluation of your case and ask for help.

The American College of Rheumatology has a great overview of what a rheumatologist is and when you should consider seeing one.

A rheumatologist is an internist or pediatrician who is qualified by additional training and experience in the diagnosis and treatment of arthritis and other diseases of the joints, muscles and bones. Many rheumatologists conduct research to determine the cause and better treatments for these disabling and sometimes fatal diseases.

What Do Rheumatologists Treat?

Rheumatologists treat arthritis, certain autoimmune diseases, musculoskeletal pain disorders and osteoporosis. There are more than 100 types of these diseases, including rheumatoid arthritis, osteoarthritis, gout, lupus, back pain, osteoporosis, fibromyalgia and tendonitis. Some of these are very serious diseases that can be difficult to diagnose and treat.

When Should You See a Rheumatologist?

If musculoskeletal pains are not severe or disabling and last just a few days, it makes sense to give the problem a reasonable chance to be resolved. But sometimes, pain in the joints, muscles or bones is severe or persists for more than a few days. At that point, you should see your physician.

Seeing a Rheumatologist in a Social Security case:

Seeing a specialist can often be critical in the Social Security case.

A rheumatologist can be especially helpful if you’re filing for disability because of arthritis or fibromyalgia. I have often seen Social Security reject a fibromyalgia diagnosis because the primary care provider’s records did not discuss specific findings or tender points. 

A rheumatologist can do the following:

• Confirm the diagnosis
• Evaluate severity of your symptoms
• Provide an opinion of the limitations caused by the condition

Via “What is a Rheumatologist?”.

It can be very difficult to win Social Security disability benefits based on fibromyalgia. However,  it can be done!

While Social Security no longer considers fibromyalgia as a “imaginary” condition, or a “junk” diagnosis, you still need to make sure the diagnosis of fibromyalgia is backed up by medical findings.

I have reviewed many medical records which mention fibromyalgia, but don’t say how the doctor made the diagnosis. There is no mention of physical examinations or findings.  Social Security may throw out the diagnosis because of a lack of medical support.  

Without a diagnosis, all you have are symptoms and Social Security cannot approve disability benefits on symptoms alone. 

This can stop a case dead in its tracks!

So, what do you need to properly diagnosis fibromyalgia?

The National Fibromyalgia Association provides an answer:

Currently there are no laboratory tests available for diagnosing fibromyalgia. Doctors must rely on patient histories, self-reported symptoms, a physical examination and an accurate manual tender point examination. This exam is based on the standardized American College of Rheumatology (ACR) criteria. Proper implementation of the exam determines the presence of multiple tender points at characteristic locations.

To receive a diagnosis of FM, the patient must meet the following diagnostic criteria:

• Widespread pain in all four quadrants of the body for a minimum duration of three months
• Tenderness or pain in at least 11 of the 18 specified tender points when pressure is applied

If you have fibromyalgia, and you are fighting for your Social Security disability benefits / SSI, ask your doctor if the basis for the diagnosis is documented in your file?

Do your medical records show “widespread pain in all four quadrants of the body for a minimum duration of three months?”

Do your medical records show, “tenderness or pain in at least 11 of the 18 tender points?”

Proper documentation is critical in a Social Security case. Make sure your records are complete.

I am often asked whether seeing a specialist will help in a Social Security disability case.

Do I need to see a specialist? I have my own doctor. What else can a specialist tell me about my case? How can they help?

I have seen numerous cases where Social Security has downplayed the opinion of a treating physician because the doctor is not a specialist!

I have even seen some cases where the Judge rejected the primary care provider’s opinion at hearing because he thought the doctor was just “saying what the patient wanted the doctor to say.”

A lot of these problems can be eliminated with a specialist’s evaluation and medical opinion.

Specialists’ opinions are often given extra weight and treated with deference by Social Security.

Social Security often views specialists as better trained, more experienced, and more objective. Specifically, Social Security is less likely  think that a specialist  is being supportive of a case only because they want to be “nice” to the patient.

A specialist’s records can do the following to help your case:

• A specialist can onfirm a diagnosis.
• A specialist can evaluate severity of your symptoms.
• A specialist can provide an opinion of the limitations caused by the condition.

Who wouldn’t want that?

eNewsMediaMagazine has some tips on building a strong Social Security disabilty claim:

Tip #1: Choose the right doctor(s).

Regardless of your specific disability, you will need medical documentation. The only way to do this is to visit at least one physician. Ideally, that would be an experienced, respected doctor in the field of your disability. The more specific the doctor to your disability, the more credibility he or she will have. For instance, if you claim to have back problems, but only see an MD for treatment, your records will probably not contain much useful information other than pain medication.

There is nothing wrong with this tip. However, for many people choosing which doctor they see, just is not an option.

If you are treating through a community health center, you are lucky to see a doctor for more than a few minutes, let alone choosing which doctor you see.

Many clinics which serve the poor, low income, and indigent “don’t want to get involved with the disability system.” This means that the only doctor you can see, may not want to fill out a residual functional capacity form for you.

Well, isn’t that just great!  The only doctor you can afford to see does not want to help you get your Social Security and Medicare/Medicaid which might actually help you get the care you need!  If you are in this position, sometimes you just have to shake the tree a bit to get some results.

Look the doctor in the eye and ask if he thinks you can work?

If the doctor answers, “no,” tell the doctor that without his or her help, you will probably be denied (which is true if you are unable to document the limitations caused by your disabilities).

Sometimes, a bit of brutal honesty helps shake a bit of humanity out of the bureaucracy many clinics are mired in. 

Read the rest of the article here. March 2, 2009 update: Sorry, the linked article is no longer available.

Have you had good or bad experiences dealing with your doctors?  Share your experiences in the comments.

The answer to this is “yes,” and “no.”

When Social Security requests medical records from a treatment provider (doctor, hospital, walk-in clinic, physical therapist, chiropractor, etc.), and they put a cap on how much they are going to pay for those records.

Unfortunately, they do not put any cap on how much the medical records provider can charge you if you request the same records.  I have previously written about how much  treatment providers can charge for medical records in the state of Colorado. Other states have similar laws in place setting the maximum for medical record charges. However, Social Security gets the best deal when it comes to requesting medical records.

You can use this to your advantage. During the initial evaluation of the case, Social Security will request your medical records from your treatment providers at no cost to you. This is why it is very important to provide Social Security with the most complete information about the doctors you are treating with, their names, addresses, and telephone numbers.

Also, it is a good idea to stayed in touch with the Disability Determination Services office in your state to make sure they are requesting, and receiving, these records.

If you are already past the initial evaluation step in your case, that is if you have already received your initial denial, it may be a good idea to work with an attorney to help limit what records you are requesting.   There are a couple of reasons for this:

In my experience handling Social Security disability cases in Colorado, Social Security rarely requests medical records  after the initial determination.   Occasionally, I see some judges requesting medical records.   But this is pretty rare, and only in cases where the claimant is not represented by counsel.

Doesn’t this mean that I can get Social Security to get my medical records at no cost to me if I simply don’t hire an attorney?

Well, no.  There is no guarantee that Social Security will get updated medical records. Additionally, you have no control over what records Social Security will try to get, or how far back they will go.

By working with an attorney, you can determine which doctors records are essential in your case, and which ones are not. The lawyer can also help you determine how far back the records should go, and most importantly, what records to specifically leave out of the request to keep costs to a minimum.

If you request all available medical records within a certain period of time, maybe a third of the records will actually be useful and relevant. The remaining records may be unnecessary lab results, physical therapy notes, nurses notes, or medication logs.   This is not to say, these types of records are always unnecessary, but frequently they do not add very much to building up a case. 

Remember: when you request medical records, you pay by the page. So, the more pages you receive (relevant or not) the more you pay.

Your lawyer can help craft a medical records request that will weed out the unnecessary pages, give you the most relevant records, and save you money.

Here are some common questions I hear when Social Security schedules an evaluation or examination with one of their doctors:

Do I have to attend the consultative examination?

Since you are applying for Social Security benefits, you have a duty to assist Social Security in obtaining the information it needs to evaluate your case. This includes going to evaluations or examination that Social Security may schedule for you.

So, “yes,” you do have to go the examination.

Of course, Social Security cannot make you attend a consultative examination. But if you do not attend, your case may be denied, or even dismissed.

What if I cannot attend the consultative examination?

If you cannot attend, contact Social Security right away.

However, do not call just any Social Security office. The notice you received when Social Security scheduled the consultative examination should provide the name and telephone number of your case worker.

In Colorado, the consultative examination is usually scheduled through Disability Determination Services (so do not let that name throw you, it is the Colorado agency that performs the initial development, evaluation and determination of your Social Security case).  Even though the letter may say, “Disability Determination Services,” it is still part of the Social Security Administration.

Let the case worker know that you cannot attend the examination and the reasons why you cannot attend.

TIP: keep a log of any telephone calls between yourself and Social Security, including date, time, who you speak to, and a summary of the conversation.

WATCH OUT: I have seen several cases where an individual called Disability Determination Services and cancelled an evaluation only to receive a denial a short time later because they “did not keep the scheduled evaluation.”  Unfortunately, your only recourse is to appeal the denial.

Keep in mind that if Social Security denies you for missing an evaluation, it is a safe bet that the judge will ask you why you missed the consultative examination when your case goes to hearing. This is where your log showing your communication with Social Security can come in handy.

If you have kept a log of your communication with Social Security regarding the cancellation of your consultative examination and your attempts to reschedule, you have a better chance of convincing the judge that missing the consultation should not be held against you.

Has Social Security sent you to a doctor for an examination? Here are some things you should know when going to a consultative examination. 

The examination begins earlier than you think:

• You are observed from the moment you enter the office. 
• The observation continues in the waiting area and you may even be observed when you walk back to your car. 
• The examination may include how you walk from the waiting area to the examination room and your ability to climb on and off of the examination table.

Your behavior may then become part of the doctor’s report to Social Security.

In my experience, the chance of a Social Security consultative examination proving that you are disabled is quite low.  Normally, they mostly bolster Social Security’s denial of your claim.  However, you can take that statement with a grain of salt. Most consultative examinations take place BEFORE the initial decision and individuals usually contact an attorney AFTER they are denied. So, I do not see the case where the consultative examination was helpful, because it results in an approval.

photo credit: cesarastudillo

If you request medical records from a doctor or hospital in Colorado, the maximum you can be charged is set by 6 C.C.R 1011-1, Chapter 2, Part 5.2.3.4. In 2008, the maximum price for medical records is “not to exceed $16.50 for the first ten or fewer pages, $.75 per page for pages 11-40, and $.50 per page for every additional page.”

This can quickly add up!

But, there is a way to get your medical records for free.

The same regulation states, “No fees shall be charged by a health care provider of patient records for requests for medical records received from another health care provider or to an individual regulated pursuant to Section 25-1-802(1) solely for the purpose of providing continuing medical care to a patient.”

This means another of your doctors can request and obtain medical records at no cost, if it solely for the purpose of providing continuing medical care.

This allows your new doctor to obtain you records from your prior doctor.  This also allow one of your current doctors to get another of your current doctor’s records so that he or she is kept up to date about your treatment.

The long and short of it is that your doctor can get your records for free.

How does this help you?  Once your doctor has gotten the records, your doctor can provide you with copies at no charge or a very minimal charge.

Obviously, your doctor cannot request the records for the purpose of providing them to you.  But, if the purpose was solely for providing continuing medical care, once the records are in the doctor’s possession, the doctor is not obligated to charge you for copies of the records.

The gotcha is that you have to have a doctor who is enough on your side to provide copies of the records in his/her possession to you at no charge.  In practice, this does not happen too often.

However, if you have a doctor who is very supportive of your Social Security claim, your doctor can save you A LOT of money by helping you get your medical records.

Note:  this is Colorado specific, but other states may have similar regulations.

ALISON (Automated Licensure Information System Online), is the online licensing database for the state of Colorado. I previously wrote about how this site is a great resource for finding an address for your doctor.

This site also has another use. If your doctor has been suspended, this will show up Alison.

When you apply for Social Security benefits, you will need to provide the name and address of each doctor you have seen for the last several years.

You may have this information for your current doctors, but finding the addresses for your older doctors may be trickier.

How do I find your doctor’s address if she has moved her office?

You can check old business cards, appointment cards, medical records or invoices for this information. You can also check the yellow pages, or check Google.

If all this fails, there is still one more way to track down a doctor.

If you are in Colorado and you have internet access, try ALISON (The Automated Licensure Information System Online). This is the online licensing database for the state of Colorado. If the doctor is licensed in Colorado, you should be able to find the doctor and the his/her current business address.

Just follow these simple steps:

1. In “Search Type,” select “Individuals.”
2. Click “Go to Search Form.”
3. When the next page loads, you can enter the doctor’s first and last name and the city where the doctor practices. If you do not know one or more of these, you can leave that field blank.
4. Click “Begin Search” to see the results.

If the doctor does not come up, check the spelling of the doctor’s name. Also try leaving the “city” field blank. I was trying to find a doctor whom I knew was practicing in Colorado Springs, but nothing came up under the doctors name in “Colorado Springs.” I left the “city” field blank and found the doctor right away. What happened? The license listed the city as “Colo. Springs” instead of “Colorado Springs.”

Keep Alison in mind if you cannot find the current address for one of your prior doctors.

The State of Colorado has allowed medical records copiers to increase the prices they charge to provide your medical records.

Medical records are one of the foundations of a Social Security case. The main way you establish the existence and severity of a medical condition is through medical records. ALL attorneys whose practice revolves around medical records are going to have to swallow this price increase. It also means that your costs as a client are going up.

Do not blame your attorney. The money is not going into your lawyer’s pocket; it is going to the medical copiers.

The maximum medical record providers are allowed to charge in Colorado is set by 6 C.C.R 1011-1, Chapter 2, Part 5.2.3.4. In 2007, the maximum price was “not to exceed $14.00 for the first ten or fewer pages, $.50 per page for pages 11-40, and $.33 per page for every additional page.”

In 2008, that has jumped to “$16.50 for the first ten or fewer pages, $.75 per page for pages 11-40, and $.50 per page for every additional page.”

What’s the big deal, it’s just pennies? Right?

Wrong. It is a big windfall for medical copiers.

Lets says you get 50 pages of records from one doctor. In 2007, you would pay $32.30 plus postage.

($14.00 for the 1st 10 pages, $15.00 for pages 11-40, and $3.30 for pages 41-50)

In 2008, you pay $44.00. More than a 36% price increase!

($16.50 for the 1st 10 pages, $22.50 for pages 11-40, and $5.00 for pages 41-50)

If you get 100 pages of medical records, in 2007, you would have paid $48.80. In 2008, you pay $69.00. More than a 41% price increase!

If you get 200 pages of records, in 2007, it would have been $81.80. In 2008, it is $119.00. More than a 45% price increase!

And it does not stop there; the more records the copier provides, the greater the increase in their prices!

Now, consider how many doctors you have seen for your disability. These prices apply to all of them! Now, doctors could charge less. But, the reason these price “restrictions” were put in place was that doctors’ offices and medical copiers wanted to charge even more.

I realize some, mostly older, records may be in damaged paper files, they have to be separated, un-stapled, copied and then reassembled. Let’s also say that it takes an hour to process 50 pages. Cost to you: $44.00. $44.00 for one hours work!

As my grandpa used to say, “Good work if you can get it.”

Many offices and hospitals are now using digital records systems. What do you think the hourly price is when the records can be pulled up on a computer and then sent to high speed printer?

What can you do about it? Call your Colorado representative! Tell him or her that the medical records copiers are charging too much and it affects your ability pursue a Social Security claim!

If you do not know what district you are in, click here first. Or give them ALL a call! Do not avoid calling because you are a Democrat and the representative is a Republican (or visa-versa). You pay their salary either way! They work for YOU!

Whether you are working with a lawyer or are trying to get Social Security disability / Supplemental Security Income (SSI) benefits on your own, you will probably be reading medical records at some point.

Here is a quick primer on how a large portion of medical records are set-up.

Most of the medical records I see from doctors in Colorado, whether from primary care providers, specialists, or other doctors use the SOAP notes system. That is, the notes are divided into Subjective, Objective, Assessment, Plan (or Prognosis): S. O. A. P.

• Subjective – this is where the doctor notes what you told him/her. What brings you in today? How do you feel? What are your symptoms? How are you reacting to treatment/medications?
• Objective – this is the signs and findings the doctor can objectively measure. This includes things like x-ray or lab findings, range of motion, or other results or observations.
• Assessment – this is typically the summary of your diagnosis.
• Plan – this is the course of treatment the doctor recommends or any changes to your current treatment or medications.

Not all doctors use the SOAP notes system. Hospitals, eye doctors and other medical providers may use other systems, but by being able to recognize the SOAP notes system, you will have a leg up on understanding what your doctor’s records are saying.

You already know how important it is to get a Medical Source Statement in your Social Security disability case.

The best source for this is your own doctor.

However, I typically see Social Security have one of their technicians or a Social Security doctor, who has never seen or examined you, determine your limitations.

When I discuss this with my clients, I am often asked why? Why does it seem like Social Security purposefully avoids getting this information from the best source, your own doctor?

My opinion is that Social Security wants to ensure an objective opinion and believes that your own doctor won’t be objective. Social Security may be worried that because your doctor has been treating you for some time, he or she may write what you want rather than what the doctor really thinks.

I personally feel this is just bologna!

If Social Security won’t do it, you and your lawyer have to get this evidence from your doctor:

• This means getting your doctor to fill out a form;  
• Or, write a letter. 
• Sometimes, a doctor feels so strongly about a case, he or she will come in to testify.

It may seem like a small thing, but just getting your doctor’s perspective on your condition can make all the difference in your case.

As a general rule, if you are applying for Social Security disability benefits or appealing a Social Security denial, Social Security will penalize you for noncompliance with your doctor’s instructions. That means Social Security may deny your disability claim if you do not do what your doctors tell you.

But there are exceptions!!! Social Security cannot just use the non-compliance rule whenever it wants to.

1. First, the doctor actually has to prescribe the treatment. Not just merely discuss the option of treatment.
2. The treatment must also be clearly expected to restore functioning to the point that you are no longer disabled. That means, that the treatment is expected to allow you to go back to full time work. If you would still be disabled in spite of the treatment, then non-compliance is not an issue.
3. The evidence shows that you have refused to follow the treatment.

Even if Social Security can meet these three burdens, there are reasonable excuses which will prevent Social Security from penalizing you for not following doctor’s instructions.

What if I cannot afford the prescribed treatment or medications?

Inability to afford prescribed treatment is the most common “justifiable cause” in failing to follow prescribed treatment. If you cannot afford the medication or procedure, Social Security cannot penalize for it.

Here are some other reasonable excuses:

• Intense and unrelenting fear of surgery.
• The treatment carries a high degree of risk because of the enormity or unusual nature of the procedure (e.g., organ transplant, open heart surgery).
• You are presently unable to work because of a condition for which major surgery was performed with unsuccessful results, and additional major surgery is prescribed for the same impairment.
• Even personal or third party knowledge of persons who did not improve, or perhaps worsened, following surgery similar to that recommended. However, this by itself may not be enough.
• The treatment recommended involves amputation of an extremity (e.g., amputation at or above the tarsal region).
• Any duly licensed treating medical source who has treated you advises against the treatment prescribed.
• Even the inability to self medicate because of a mental or physical impairment may constitute good cause.

Social Security has the burden on the issue of noncompliance. You must receive a full opportunity to provide specific reasons for noncompliance before benefits can be denied on that basis.

photo credit: preciouskhyatt

Your doctor’s opinion of your disability is critical evidence in your Social Security disability case. If your doctor does not believe in you, you and your lawyer are facing an uphill battle.

Chances are, Social Security either sent you to one of their doctors for a consultative examination, or had your medical records reviewed by a Social Security doctor. If Social Security denied your claim, their doctors probably did not think you were disabled.

So, here is the problem: if the Social Security doctor says you are not disabled and your doctor does not believe in your disability, you may not have the evidence you need to prove your case.

What can I do if my doctor does not support me?

Unless you can get your doctor to change his or her mind, you may need to get a new doctor as soon as possible. You may not be able to undo the damage done by your current doctor, but you can at least provide fresh evidence that supports your disability from the new doctor.

I do not advocate shopping for a more favorable medical opinion. However, if you and your lawyer think that your doctor is biased against you, or against anyone applying for disability benefits, don’t let them ruin your claim!

A 100% impairment rating from the VA is usually terrific evidence in a Social Security disability case. While a VA rating is not binding on Social Security (Social Security does not have to agree with the VA that you are disabled), Social Security will often give strong deference to a 100% disability rating from the Department of Veteran Affairs.

However, that still does not make a case a slam dunk. A number of problems can arise which may cause Social Security to deny your case.

1. Lack of treatment. Social Security expects an individual to try to exercise a reasonable amount of self-help. That means getting regular ongoing medical treatment. Of course, some conditions may not be helped with on-going medical treatment (e.g. a loss of a limb), but others may.
2. Non-compliance with treatment. Social Security regulations allow a claim to be denied if the individual is non-compliant with treatment if that treatment is prescribed and estimated to restore functioning to the point that the individual is no longer disabled. In practice though, I see cases denied simply for failure to follow treatment. Note: there are exceptions that excuse non-compliance with treatment, such as inability to afford the treatment or medication.
3. Drug or alcohol abuse. This is one of the biggest obstacles to what otherwise might be a fairly clear cut case. Under Social Security regulations, if drug abuse or alcoholism is a material factor contributing to the disability, benefits can be denied.
4. Family or marital issues. If periods of symptom aggravation coincide with periods of trouble with a spouse or other family matters, it may be difficult for Social Security to separate whether the disabling symptoms come from the underlying impairment (which may allow for approving benefits) or from the situational issues (which may cause a denial of benefits).

None of these problems is necessarily insurmountable. But, the first step in resolving one of these issues is being able to identify it as a possible problem.

This is one of those instances when having an attorney objectively and impartially review your case may be extremely useful. What may seem like a minor matter or an easily explainable situation to you, may turn out to be a major hurdle in approving your case.

In Colorado the cost of medical records are based on the number of pages you get. This means getting your records can quickly get expensive. But, you do not have to request every single scrap of paper, phone message, or referral that was ever generated by your doctor’s office. If you want to, you certainly can. But, chances are you will be paying for records you do not really need.

One way to keep the costs of your case down is to limit the scope of the medical records you are requesting. You can do this in two ways: Limit the dates of service (how far back you want the records to go), or, limit the type of records requested.

So, what records do I need to get?

While I can give you some very general guidelines, there is a very good chance your case may fall into an exception. This is an area where good judgement becomes crucial!!!

Generally speaking, you want to get records about a year before the disability began, or a year before you filed for benefits. More recent records are usually more valuable than older records.

Some exceptions: if there was a significant accident, treatment or diagnosis before this one year period, you may want to get those records.

As far as types of records, records from specialists are generally more valuable than records from a primary care provider. But, you usually want to get records from both.

When my office requests records from a hospital, I usually tell the hospital not to provide medication logs or nurses notes as they can double or triple the number of pages, and thereby greatly increase the cost of the records.

Please note: you could reverse the information here and it still may be correct. Sometimes older records are more valuable than newer records and a family doctor’s records that go back for ten years may be more important than the records of a one time evaluation with a specialist. There are no hard and fast rules. In this area, it is all a matter of judgment.

So, how much is it going to cost me to get my medical records? 

The cost of obtaining medical records differs from state to state. In Colorado, where my practice is located, doctors’ offices are supposed to charge no more than the “reasonable cost” of providing the records.

Under Colorado law, the “reasonable cost” is $14.00 for pages 1-10, $0.50 per page for pages 11-40, and $0.33 for every page after that. Plus postage.
So, it all comes down to the number of pages of records you are requesting. If you are requesting 60 pages of records, the cost would be as follows:

$14.00 for pages 1-10

$15.00 for pages 11-40

$6.60 for pages 41-60

GRAND TOTAL: $35.60 for 60 pages before postage charges. (Now you know why being a medical records copier is lucrative business).

Ok, but you do not request medical records by the page. No one says ‘give me 60 pages of my file.’

True enough. When my office requests medical records, we do it by how far back we are requesting records and the types of records we are requesting. This will be the topic of the next (thrilling) installment.

UPDATE:  These prices are now out of date.  Click on the “Medical Records” category for posts discussing the new rates.