Episode 6 of Social Security Disability Law Weekly Podcast includes discussion of: importance of local attorneys in Social Security Disability Claims; use of an iPad in Administrative Law Judge Hearings; don’t blame the messenger when unpleasant information is communicated about your disability or SSI claim; Social Security Denials Remain High in Delaware; impact of disability on Social Security Retirement benefits; and concept of medical record lag in Social Security claims. Download Episode 6 or press play below to listen in your browser.

Show Notes: Social Security Disability Law Weekly Podcast Episode 6

• Subscribe in iTunes (subscribe in iTunes)

This Week’s Topics:

• Off Topic
  • Support local attorneys – discussion of advantages of having a local attorney
  • Is my attorney using an iPad?
• Issues during my week in practice
  • Don’t Blame the Messenger!
    • Finding out that you don’t qualify for Social Security disability can be difficult, but it is important to remember that the person communicating the message to you isn’t the one making the rules.
• Social Security News (Discussion of Topics Reported in the News and Blogs this Week)
  • Social Security Denials Remain High by Mike Chalmers of the Delaware News Journal
    • Further discussion of the relatively high denial rate for Social Security disability claims by Delaware Administrative Law Judges
  • Social Security Disability Benefits at Retirement Age by Scott Lewis of Indiana Social Security Disability Lawyer Blog
    • Description of what happens when you reach retirement age and are on disability
    • Reminder to consider loss of benefit when on Early Retirement instead of disability
  • The Medical Records Time Lag by Gordon Gates of the Social Security Disability Lawyer Blog
    • More complete medical records can help you win your claim

Closing Credits:

• Contact Steve Butler to Discuss Social Security Disability Law Weekly
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy
  • Facebook: http://facebook.com/SSALaw

I hope you enjoyed the sixth episode. Please feel free to give me any feedback for improving future episodes. If you enjoy the podcast, you can subscribe in iTunes.

Social Security Disability Law Weekly is a podcast devoted to issues in Social Security Disability Law. Discussion is focused on Social Security Disability Insurance and Supplemental Security Income payments. Social Security Disability Law Weekly is hosted by Steven Butler of Linarducci & Butler, PA.

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When reviewing disability, the Social Security Administration requires medical proof of your disability. This means that the Social Security Administration will look for objective results that support your limitations. It is important that your treatment records contain details reflecting your symptoms, your response to treatment, results of diagnostic testing, and a plan of treatment.

The Medical Society of Delaware (“MSD”) is a society of physicians with the core purpose to “guide, serve and support Delaware physicians, promoting the practice and professional medicine to enhance the health of our communities”. In May 2006, MSD developed treatment guidelines for chronic pain. Although MSD abandoned the development of new guidelines in February 2009, the previously developed guidelines remain available for review.

According to MSD, the guidelines were created to assist primary care physicians in treatment of patients with chronic pain in recognition that chronic pain causes physical and emotional suffering of patients. It is specifically recommended by MSD that consultation with specialists be incorporated into the patient’s treatment plan. Physicians are directed to consider not only the pain diagnosis, but also emotional and functional impact pain has on their patients.

The following areas are notable in the guidelines:

• The diagnosis of a painful condition should include an extensive differential diagnosis that rules out treatable and reversible etiologies while rationally managing symptoms of severe pain.
• An initial assessment of chronic pain should include a detailed history (including vocational issues related to pain), full physical exam, consideration of diagnostic studies, differential diagnosis, and a plan of care. The plan of care should be developed with consideration of patient’s history, examination, and goals.
• When implementing a treatment plan, physicians are instructed to ask about pain regularly, accept patient reports of pain, intervene early, and provide information that helps empower patients to make appropriate decisions.
• Timetables should be developed and the rationale of treatment should be discussed with patients. Documenting the treatment by measuring the progress of pain is essential.
• Objective examination results that reveal abnormalities should raise red flags that lead to specialist referral.
• After diagnostic assessment of pain, conventional treatment (including physical therapy, exercise, chiropractic evaluation and short acting pain medications) should be followed by specialist referral if no improvement in symptoms after more than 6 weeks of treatment.
• Family physicians should determine if psychiatric symptoms exist and consider referral for psychiatric or psychological assessment.
• After an initial treatment plan is created, physicians should monitor and record changes in medical history, perform a focused exam to correlate subjective complaints, observe functional limitations, order and review diagnostic testing, and revise the treatment plan based on the patient’s response to treatment.

The guidelines suggested by MSD explain why specialist care is important when you suffer from long-term chronic pain. If your family physician has not referred you for specialist care, it is important that you discuss and question that decision. If your pain fails to respond to the treatment that you are receiving, suggest additional care to better evaluate your symptoms and discuss the guidelines with your physician.

I am not suggesting that a family physician should not be involved in chronic pain treatment, only that your physician should realize when additional care is needed. The plan for pain management care should be reviewed with your family physician, and your family physician should manage and coordinate your care with other physicians. The purpose of these guidelines is to help you obtain relief of your pain. If your physician follows these guidelines, your condition will be better documented, you will receive heightened care for your condition, and it will ultimately be more likely that you will qualify for Social Security disability benefits if your condition fails to improve.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Sample Social Security Disability Denial Letter

My clients are often concerned that they were denied benefits because their doctors indicated to Social Security that they could work. The notice specifically states, “the following reports and records were used to decide your claim”. It is often assumed that if a doctor is listed in the notice, that a medical report was provided regarding the individual’s disability status. This assumption is normally wrong. In my experience, 99% of the time only medical records were provided to the Social Security Administration after the Disability Determination Service requested information. The notice is simply providing a list of any doctors that provided medical information to the Disability Determination Service.

What Information did my Doctor Provide to Social Security?

Often your physician does not even realize that he or she has sent information to the Social Security Administration. This is because your doctor’s staff normally responded to the medical request on your doctor’s behalf. In Delaware, the Disability Determination Service is only authorized to provide a flat fee of $15 for any medical evidence requested from your doctor. Most doctors are not willing to provide a detailed medical opinion regarding your disability and to make copies of all of your medical records for $15. Consequently, they simply provide a copy of your medical records.

The reason that it is important to understand that Social Security simply relied on medical records, is because otherwise you may assume your doctor believes that you can work and that you are not disabled. I have had multiple clients that have told me that they did not appeal a decision because they believed that their doctor indicated to Social Security that they could work. They never discussed the decision with the doctor, and sometimes even switched to a new doctor because they blamed the denial on their doctor’s report.

But if Social Security Denied me, doesn’t that mean that my Medical Records don�t Support Disability?

If you are pursuing disability benefits, it is important that you discuss your disability application with your doctor. Tell your doctor that you plan to apply for benefits, and ask for him or her to provide you with a letter in support of your disability application. If your physician provides detailed information indicating the limitations that you experience because of your medical condition, it is more likely that the Social Security Administration will actually know your doctor’s medical opinion.

It is not sufficient for your doctor to indicate that he or she believes that you are disabled; he or she also needs to provide an explanation to support that conclusion. Ask your doctor to provide a detailed description of your medical diagnosis, any test results that support your diagnosis, your symptoms and limitations, and how your medical condition would interfere with your ability to complete a normal workday or workweek. The Social Security Administration normally rejects a simple conclusion that you are unable to perform work. Social Security needs to know why your doctor believes that you cannot perform work. Without this detailed information, the Disability Determination Service must try to determine what your doctor thinks based on his or her records alone.

After you receive a denial from the Social Security Administration, I recommend again discussing your disability with your doctor. Ask your doctor to read your decision and determine if your doctor agrees with the decision. If your doctor disagrees with the determination, ask your doctor to provide another letter explaining why he or she disagrees with the conclusion. Ask your doctor if additional treatment is available or if you should be referred to a specialist. Make sure your doctor understands the importance of you receiving disability benefits.

Work with an Attorney to Review and Appeal your Denial.

It is important to remember that the notices sent by the Social Security Administration are form letters. You will not receive a detailed explanation of why your records do not support your disability, instead you will receive only a short summary indicating that your condition will not last long enough in order for you to qualify for Social Security Disability, that you can still perform some type of work, or that you do not meet other non-medical requirements of the disability program. Because this information can be misleading, it is important that you simply do not abandon your claim and accept the conclusion of the Social Security Administration without understanding the decision.

The majority of attorneys that handle Social Security disability claims will see you on a free consultation basis, and usually are willing to review your decision and try to make a determination if additional information can be provided to the Social Security Administration that will establish that you meet the disability eligibility requirements. Take advantage of this free consultation before deciding to abandon your claim, and find out how an attorney can help improve your claim.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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The following fee schedule has been established by the new Administrative Regulation (24 DE Admin. Code 1700, Sec. 30):

30.1 A patient requesting of a copy of his or her own medical records to be transferred to another physician or to be obtained on their own behalf may be charged a reasonable fee not to exceed the fees set forth in the schedule below, excluding the actual cost of postage or shipping if the records are mailed:

• $2.00 per page for pages 1-10
  
• $1.00 per page for pages 11-20
  
• $0.90 per page for pages 21-60
  
• $0.50 per page for pages 61 and above
  

30.2 The fees set forth in section 30.1 above shall apply whether the records are produced in paper or electronic format.

30.3 The full cost of reproduction may be charged for copies of records not susceptible to photostatic reproduction, such as radiology films, models, photographs or fetal monitoring strips.

30.4 Payment of all costs may be required in advance of release of the records except for records requested to make or complete an application for a disability benefits program.

What is important to note about this regulation is that the fee schedule only applies when a patient requests a copy of his or her own medical records. If an attorney requests records on your behalf, doctors are permitted to charge a higher rate.

This fee schedule is still not ideal for individuals that are applying for Social Security Disability Insurance or Supplemental Security Income payments. For example, under the new fee schedule, doctors are permitted to charge the following rates based on the number of pages of records:

These fees can still result in substantial costs in just obtaining medical documentation that is required to pursue your claim. There is no maximum fee that your doctor can charge you for your records, as long as he or she adheres to the fee schedule. For comparison, Pennsylvania has a flat fee charge for production of records to support any claim under Social Security. The Pennsylvania flat rate in 2009 is $25.09. If your doctor has more than 15 pages of records in Delaware, you would exceed the Pennsylvania flat rate.

The most helpful part of the new regulation is that doctors are not permitted to require prepayment for records to be used for completing a disability application. This means that if you notify your doctor that you need records to pursue Social Security Disability, they are required to provide the records even if you cannot immediately pay the costs. (You would still be responsible for repaying the costs, your doctor is simply required to release the records prior to receiving payment.)

Although the new regulation is a good start, it is important that you still express your concern about medical record costs to your State Representative, State Senator, and the Board of Medical Practice. If your physician refuses to adhere to this fee structure, and you are Delaware Resident, it would also be important to notify the Board of Medical Practice of your physician’s failure to comply with the regulations.

Relevant Links:

• Board of Medical Practice
  
• Locate your State Senator
  
• Locate your State Representative
  

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Electronic medical records are important because they allow essential information to be communicated in a legible fashion. During an Administrative Law Judge Hearing earlier this week, I had a Judge remark to my client that his mental healthcare provider “needs to learn to write”. Because of the poor quality of these medical records, my client had been denied benefits multiple times. It was impossible for other medical professionals to review these records and understand the degree of my client’s impairment.

Why you should want Electronic Medical Records

• Legibility – records that are typed are easy to read. If your records are not legible, it is impossible to determine the treatment you have received, the complaints that you have experienced, and the objective physical examination results that support your disability. Beyond Social Security, legible records are important if you switch healthcare providers, or if you require emergency care. It would be easy for a wrong diagnosis to be made or to be provided a medication that you have had a bad reaction to if a new physician cannot understand your previous records.
• Redundancy – electronic medical records should be backed-up. Any physician that stores your records electronically should also have a system to archive your records offsite. This is important because if the originals are destroyed, your physician should be able to restore them. If original paper documents are destroyed, the are likely gone forever.
• Access – it should be easier and cheaper to obtain electronic records. Traditional records had to be copied by an individual. Normally the records were bound in a folder and commonly they were hard to feed through a copier. Copying traditional medical records was a time consuming effort. Electronic medical records can usually be printed out with a few clicks of the mouse. Some systems even allow electronic transmission to other doctors, insurance companies, hospitals, and government agencies. This saves your healthcare providers time and should also minimize the cost of record production.
• Quicker Social Security Decisions – if your records are easier to obtain and read, the Social Security Administration is able to issue decisions quicker. In pilot projects where Social Security has been able to obtain medical records electronically, claims have been processed almost 50% quicker (Commissioner Michael Astrue Testimony Before Congress, November 19, 2009). Even your records are not transmitted electronically, your file can be reviewed quicker when the information is provided legibly.

Problems with Electronic Medical Records

I agree that there are currently major problems with the way that electronic medical records are used. It appears that systems that are used and sold to the majority of physicians were not designed with the practice of medicine in mind.

The number one problem that I encounter with electronic medical records is every visit is treated as a full physical examination. Even routine visits for blood pressure checks, common colds, test result reviews, or medication checks, still result in 4 to 8 pages of medical records. Electronic medical records commonly include sections for your complaint, your history, review of your systems, objective examination findings, your diagnosis and your doctor’s plan of care. All of these fields are included on each visit regardless of whether each section was updated (normally only the complaint section and the plan of care is updated).

This method of recording information results in unreliable information. I routinely find that my client’s medical conditions are not described in the review of systems or examination sections when they see a doctor for a routine visit. I have had several clients with spinal fusions where the electronic medical records indicated that a physical examination revealed full range of motion and normal musculoskeletal findings. In the history section, I have seen records that indicated on each of 18 visits over a 2 year period, that my client had started to have leg pain the previous week. Clients have been denied Social Security disability benefits because their treating physician indicated that there were no complaints in areas where an exam was not actually performed.

Improvements Needed for Electronic Medical Records

What is necessary in order to improve electronic medical records, is to only record details that are actually obtained during the visit. The complaint section and the plan should be updated with new information on each visit, the history section and diagnosis sections should be updated, and the review of systems and objective examination information should only be entered if the information was actually obtained during the visit. If an individual’s history or diagnosis changes, the change should be noted with the date of the change and with emphasis added to the new details so that the change is easy to identify. Review of systems and objective examination details should only be included when those details are obtained from a patient, and only the details obtained on that visit should be included.

These changes would help reduce the number of pages of medical records and make the information more reliable. Cutting and pasting should be frowned upon, and prompts should be provided to ask a healthcare provider if the items were reviewed or if exams were completed before the information is inserted into the record. A physician should not be willing for sections to be included in a medical record if the information was not actually obtained on that visit.

What you Should Do

The problems with electronic medical records are important to you because you can be denied disability benefits because of poor documentation. If your physicians do not accurately record your subjective complaints, or indicate that examinations are performed that have not actually occurred, you need to consider switching physicians.

The Social Security Administration requires objective evidence to support your disability, and can deny you if the objective evidence reveals that there is no impairment. Even if one specialist properly documents your condition, if another physician’s records indicate a normal exam, a conflict about the severity of your condition has been created. The Social Security Administration will be required to resolve the conflict and find that one physician is reliable and that the other is not.

I encourage all my clients to be proactive about their treatment. It is important that you know if your physicians are correctly documenting your condition. Ask to review your medical records, and if you cannot read them, it is unlikely anyone else can. If your complaints are not included in your records, it is important to realize that Social Security will be unable to consider them. If there are indications that exams were performed that were not, or normal findings or no complaints are recorded in areas that you experience problems with, it is important to obtain clarification or explanation from your healthcare provider about the conflict. If your condition is not documented well by your treating physician, it is more likely that Social Security will determine that your impairment is not severe, and that your Social Security Disability Claim will be denied.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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