If you are currently in the process of a Social Security disability claim, you probably understand how important it is to receive medical treatment and generate medical records for disability adjudicators to review. However, the truth is what is contained within those records is what’s really important.
According to SSR-82-59, the failure to follow treatment prescribed to you by your doctor could result in the prevention of benefits being payable to you, or cessation of benefits should you already be receiving them. The ruling states:
“Individuals with a disabling impairment which is amenable to treatment that could be expected to restore their ability to work must follow the prescribed treatment to be found under a disability, unless there is justifiable cause for the failure to follow such treatment.”
In order to identify a failure to follow treatment, all of the following conditions must exist:
1. The evidence establishes that the individual’s impairment precludes engaging in any substantial gainful activity (SGA) or, in the case of a disabled widow(er) that the impairment meets or equals the Listing of Impairments in Appendix 1 of Regulations No. 4 Subpart P; and
2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any SGA (or gainful activity, as appropriate) has been prescribed by a treating source, and
4. The evidence of record discloses that there has been a refusal to follow prescribed treatment.
Once the “failure” is identified, SSA must then determine whether or not the failure is justifiable.
First, SSA must determine if the prescribed treatment was recommended by a physician who is actually attending to the claimant’s medical needs. In other words, this person cannot be a consultative examiner seen on one occasion. Hospitals, clinics or other medical facilities where the claimant goes for medical care are also considered treating sources.
Next, SSA must consider whether or not the prescribed treatment is expected to restore the claimant’s ability to go back to work. If it is not, then the issue of failure to follow prescribed treatment is dropped. However, if a treatment exists that SSA believes may restore the claimant’s ability to go back to work, but said treatment has not been prescribed by a treating source, SSA may refer that individual to Vocational Rehabilitation Services.
Once the issue of failure to follow prescribed treatment is identified, the claimant is then allowed an opportunity to explain the failure. The claimant should be asked if he or she understands the implications of the treatment prescribed, as well as the implications of failure to do so. The claimant should also be made aware by SSA the reason for this questioning and the possible consequences.
Of course, a claimant could have very good reasons for not following prescribed treatment. Some justifiable reasons identified by SSA are as follows:
– Acceptance of prescribed treatment would be contrary to the teachings and tenets of the claimant’s religion.
– Cataract extraction for one eye is prescribed but the loss of visual efficiency in the other eye is severe and cannot be corrected through treatment.
– Intense and unrelenting fear of surgery. However, SSA may require this be documented by the treating source who recommended the surgery.
– The individual is unable to afford prescribed treatment which he or she is willing to accept, but for which free community resources are unavailable.
– Any duly licensed treating medical source who has treated the claimant advises against the treatment prescribed for the currently disabling condition.
– The claimant is 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.
– The treatment carries a high degree of risk because of the enormity or unusual nature of the procedure.
– The treatment recommended involves amputation of an extremity.
The issue of failure to follow prescribed treatment is a complicated yet important one. Our blog covered only a few very important points. If you are in a position where you feel you might be under this type of scrutiny, it is advisable to seek the counsel of a disability attorney.
Have questions? We are here to help you! Chances are we have a local office in your neighborhood: Cleveland, Akron, Canton, Beachwood, Youngstown, Lorain, Toledo, Mentor and Ashtabula.