Why don’t you send me to see your doctor?

Posted on July 26th, 2018

SSA and especially its ALJ’s are granted a certain degree of discretion to decide if a claimant is or is not disabled. SSA does not have to award you benefits solely because you say your pain is so severe it precludes work or your doctor thinks you are disabled.

Under certain situations, a “longtime treating physician”, not somebody you have seen once or twice over several years, or an E/R doctor can be entitled to “controlling weight”. However, this opportunity or exception is slowly disappearing. For applications filed before March 27, 2017, there is still “the treating physician rule”. For any application filed on or after March 27, 2017, the treating physician rule no longer exists. It is hoped that the deferral courts, over time, will reimpose the treating physician rule as it was established by court decisions, not SSA. This might never happen and even if it does it will likely take years before cases denied for this reason get appealed to the federal courts.

With no treating physician rule, it will be easier for SSA to prefer its review physicians that never examine but merely review the evidence of record, or the consultative doctors it send you to see for a simple exam. Even if your doctor is a specialist or expert in your disease, SSA can now still prefer its doctors who are not experts, who have no usually been in private practice for many years, etc..

SSA is not stupid. If I send all of my clients with a heart problem to Dr. A, SSA will fairly quickly recognize this. If SSA thinks you saw Dr. A because I sent you, or some other representative, you are just giving SSA another reason to disbelieve Dr. A. SSA will think Dr. A says you are disabled because I refer you and he wants to get paid. I have learned over my 43 years that SSA is much more likely to believe your doctor when it is a doctor you selected, not I. In fact, SSA has recently issued now ethics rules, effective August 1, 2018, that an attorney or presentative must notify that an attorney or representative must notify SSA if that claimant was referred to SSA if the claimant was referred to this doctor for the purpose of obtaining an opinion to disability.

I believe it will still be better to argue your regular doctor is a long time treating doctor and compared to other doctors he/she should still be given more adjudicative weight. The system has never dealt will with randomly seen doctors and I don’t think the new rule will make it any better.

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