Is it Possible to Win a Disability Case Without Having Seen a Doctor Often?

Here’s what to do if you haven’t gotten consistent medical treatment for your disability.

By , J.D., University of Missouri School of Law

If you're filing for disability benefits because you're unable to work, Social Security requires that your impairments be documented with medical evidence. The strength of a disability claim often depends on the nature and quantity of the medical treatment received. In some cases, however, an individual may be found disabled even with an inconsistent treatment history.

At the initial application stage, the disability examiner assigned to your case will request your recent medical records, usually those from the past two to three years. If your file contains insufficient medical evidence, in many cases Disability Determination Services (DDS) will arrange for you to attend a consultative examination (CE) with a doctor paid by Social Security.

With few exceptions, the physicians who perform the "independent" disability exams for Social Security rarely write reports favorable to claimants. Oftentimes the consulting doctor specializes in an area of medicine completely unrelated to your alleged impairment, and performs a perfunctory exam that lasts fifteen minutes or less.

Perhaps this explains why disability attorneys are constantly reminding their clients of the importance of obtaining consistent medical treatment. Under Social Security's "treating physician rule," the opinion of your treating doctors generally outweighs those of a medical consultant from Social Security. Moreover, disability examiners often assume that a lack of consistent treatment indicates a non-severe medical situation. In fact, many disability claimants, even those with life-threatening conditions, are unable to obtain treatment for financial and other reasons.

What If I Can't Afford Medical Treatment?

Before discounting your alleged impairments based on your failure to obtain medical treatment, disability examiners and Social Security judges must consider your explanations for the lack of treatment. In particular, Social Security regulations require examiners and judges to consider that you may not be able to afford health care or have access to any free or low-cost services. Similarly, if you're failing to take prescribed medication or follow other prescribed treatment, SSA must consider whether this is due to financial constraints.

The burden is on you to prove that you cannot afford to see a doctor or obtain medical treatment and that there are no low-cost alternatives available. In practice, your explanation will be much more persuasive if you can show that you've done the following:

  • completed an application for Medicaid
  • contacted community organizations for assistance
  • sought treatment from emergency rooms or urgent care centers when appropriate, and
  • called doctors' offices to inquire about low-cost services they can provide, or whether they can arrange a payment plan.

With the advent of the Affordable Care Act ("Obamacare"), you should also consider applying for subsidized health insurance on the new exchanges (learn more here). Beginning in 2014, insurers are not allowed to deny coverage or charge more to those with pre-existing conditions.

When Will Social Security Arrange for Me to See a Doctor?

According to the Supreme Court, disability proceedings are investigative in nature, not adversarial. Thus, an Administrative Law Judge has a duty to develop (gather) the evidence and examine the facts in your case. If the medical evidence is ambiguous or insufficient, the ALJ may choose to ask questions of a medical expert, re-contact your treating doctor, or schedule you for a consultative exam.

While SSA regulations state that your treating doctor is the best person to do a consultative exam (CE), unfortunately most practicing physicians won't accept the fees paid by Social Security for the performance of those exams. Thus, if a disability examiner or ALJ does decide that you need a CE, you're likely to see a physician consulting for the SSA.

Don't rely on Social Security to set up a CE on its own initiative. If your recent treatment history is spotty, you should submit a written request for a CE to the hearing office handling you're case. Feel free to state whether you'd prefer to see a particular type of specialist, but understand that SSA may not be able to accommodate your request.

How Can a Disability Attorney Help?

Occasionally, a disability attorney might pay for you to be examined by a doctor who will submit a report for Social Security. Due to the expense involved, however, most attorneys only elect this option in cases where their clients' problems are obvious but undocumented. In other words, disability attorneys will risk their own (or their firm's) money only when a medical exam could realistically turn a losing case into a winning one. In most circumstances, the client is required to reimburse the attorney for the costs of the exam if he or she is approved, and sometimes, even if denied.

In addition to arranging for an exam or requesting one from the SSA, an attorney will be better able to explain gaps in your medical treatment history to the SSA, obtain statements from relatives or employers familiar with your condition, and elicit well-supported opinions about your functional limitations from doctors who have seen you only once or twice.

Attorneys are also frequently able to point you in the direction of an affordable health care provider in your area, and some may be willing to assist you with a Medicaid application. Given the length of time between an application for disability benefits and a hearing (often a year or more), obtaining Medicaid benefits early in the disability process may allow you to establish regular treatment well before your hearing.

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