Following Prescribed Treatment. What does it mean?

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It is not uncommon in Social Security disability cases that people claim, as part of their disability, intractable knee pain.  Their pain becomes worse after sitting for short periods of time and after waling short distances.  Standing is out of the question.  But what happens if the treatment prescribed is known or recognized in the medical literature as being  just as effective as another type of treatment?

recent study of the BMJ (it used to called the British Medical Journal whose 1st edition was published in 1840) published in July 2016, demonstrated that there was no clinical difference in outcome for a 49 year old person with degenerative meniscal tears who had 12 weeks of exercise therapy instead of a surgical procedure (an arthroscopic partial meniscectomy).  In other words physical therapy is just as effective as surgery.  In most cases, a medical specialist,  in this case an orthopedist, will prescribe certain treatments.  Even with a study such as the July 2016 study from the BMJ, an orthopedist may still order surgery instead of physical therapy.  There are numerous reasons why the treatment prescribed may differ from medial literature.  For example, the physician may feel that his or her patient population is different that the ones in the study.  Or, the physician may feel that his or her technique is better.  Some may believe that despite the study, the physician has obtained the desired results.

Not following prescribed treatment raises special issues  in Social Security disability case.  The Social Security Administration has a rule which states: “In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work.  (20 C.F.R. § 404.1530 and § 416.930(b) Need to follow prescribed treatment.)  There are 5 exceptions to this rule, including: the medical treatment is against your religion; it involves eye surgery for cataracts; the surgery had been previously performed or the treatment involves an amputation of an extremity or major part of an extremity.  A legitimate question is whether not agreeing with a physician’s prescribed treatment is the same as not following prescribed treatment in the Social Security context.

Unless the person seeking disability is a physician, most likely, the Social Security Administration will consider that person did not follow prescribed treatment if none of the 5 exceptions apply.  If the person seeking disability does not agree with the recommended treatment, it could be a problem particularly if the physician charts that the person is not complying with treatment.  I have read some charts in which the physician wrote that the patient did not choose to accept a particular course of treatment but chose something different and the physician indicated that he/she agreed with that choice.  The fact that the patient chose another course of treatment and the physician went along with that choice does not, at least in my experience, seem to present a problem with Social Security.

Another option may be to obtain a second or even third opinion.  If a choice for treatment is made based on a second or subsequent opinion and the medical opinion is from an equally qualified and credentialed physician it would seem that the person is still following prescribed treatment.

 

Indiana Trial Lawyers Association