Obviously Social Security disability attorneys like me expect to win every case we take. After all, disability attorneys only get paid if we win. However, the reality is that not every case produces a favorable decision and if we lose, I spend a lot of time reviewing and thinking about what the judge wrote in an effort to understand why my client’s case is denied.
Lack of Compelling Medical Evidence Will Result in a Denial
In my experience the number one reason why judges deny cases has to do with lack of compelling evidence. This could take the form of gaps in treatment – when four, six or more months elapse between doctor visits. Lack of medical treatment could also mean that the judge expects to see treatment from a specialist, but all he sees are medication management notes from your family doctor.
Obviously if you don’t have good insurance, or if you have no money it seems unfair to expect multiple monthly visits from neurosurgeons at Emory University or cardiologists from St. Josephs, but if all the judge sees are notes from a family doctor you are probably going to lose.
This is especially the case when your medical issue is one that can be imaged with an MRI or CT. I think it is fair to say that if you allege disability based on back pain, there needs to be an MRI report in your file and that MRI report needs to show a herniated disc, spinal stenosis or spinal cord impingement.
Similarly if you are alleging disability based on a painful autoimmune condition like fibromyalgia, lupus or rheumatoid arthritis, your judge will expect to see treatment notes from a rheumatologist and statements in that record that your condition is not responding to medication and that you are totally compliant with treatment.
Medical Record Does Not Document Functional Impairments
Another common basis for denial are medical records that say nothing about limitations on your capacity to function. In a best case scenario we can obtain a functional capacity evaluation completed by a long time treating specialist who identifies specific work activity and reliability limitations. But even if the doctor won’t fill out one of these forms, the record needs to talk about problems you have sitting, standing, walking, lifting, carrying, focusing and concentrating.
If your doctors’ records indicate that you are responding well to treatment, that your activities have increased, that your pain has decreased and that you are improving, that is inconsistent with testimony that you are in so much pain that you cannot work.
Some doctors do not want to document a lack of success with treatment so you have to go out of your way when treating to let the doctor know that you are doing everything in your power to get better (i.e., going to physical therapy, losing weight, stopping smoking, taking medications as directed, exercising) but you are still not getting better.
Suggestion in the Medical Records that Your Complaints are not Consistent with the Objective Evidence
Disability judges are on high alert for evidence of symptoms magnification or, worse, malingering or drug seeking behavior. If your doctors’ notes suggest that your complaints of pain or limitation of movement are much greater than what the doctor expects given what testing shows, your judge will not give much weight to your testimony.
For example, I recently reviewed an unfavorable decision where the MRI report showed one small disc bulge with no impingement on the spinal canal, yet the claimant alleged constant, “level 10″ debilitating pain. The judge denied this case and stated that she gave very little weight to the claimant’s testimony because there was no science behind it.
Suggestion in the Record that You are Invested in the Idea of Being Disabled
Often when the objective evidence in a medical record shows a mild level of impairment, I can sense in the judge’s language that the judge believes that a claimant has given up and has decided that he/she is disabled. Judges like and respect fighters – people who hate the idea of having to pursue disability benefits and who would go back to work tomorrow if they could.
Most judges want to award benefits to deserving claimants but if they feel you are not a “reluctant claimant” you risk an unfavorable decision.