Consumer Law Blog

Failure to Follow Prescribed Treatment-Social Security Appeal

Comments: 0

As a Social Security disability attorney, I find myself faced with instances when an Administrative Law Judge (ALJ) denies my client disability benefits after a hearing because he or she found that the claimant failed to follow a prescribed treatment.  In a recent decision I appealed to the 10th Circuit Court of Appeals, the ALJ made her credibility determination based on this erroneous legal standard. In her credibility determination, the ALJ wrote "to obtain disability benefits, the claimant must follow treatment prescribed by his or her physician if the treatment would restore the claimant's ability to work.  If the claimant does not follow prescribed treatment without a good reason, the claimant will not be found disabled.  The regulations do not list financial inability to pay for treatment as an acceptable excuse for failing to follow prescribed treatment.  (20 CFR §404.1530, 416.930)."  The claimant needed knee replacement surgery, but he was unable to get the surgery because he couldn't afford it.  He also needed another doctor's approval for the surgery.

ALJ didn't understand Social Security Ruling 82-59

This ALJ's statement demonstrates a misunderstanding of Social Security ruling 82-59, which lists the justifiable causes for failure to follow the prescribed treatment as including "The individual is unable to afford the prescribed treatment which he or she is willing to accept, but for which free community resources are unavailable. Although a free or subsidized source of treatment is often available, the claim may be allowed where such treatment is not reasonably available in the local community."  SSR 82-59.

Other justifications for failing to follow prescribed treatment include:

1. Acceptance of prescribed treatment would be contrary to the teachings and tenets of the claimant's or beneficiary's religion.

2. 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.

3. In an unusual case, a claimant's or beneficiary's fear of surgery may be so intense and unrelenting that it is, in effect, a contraindication to surgery.

4. The individual is unable to afford the prescribed treatment which he or she is willing to accept, but for which free community resources are unavailable.

5. Any duly licensed treating medical source who has treated the claimant or beneficiary advises against the treatment prescribed for the currently disabling condition.

6. The claimant or beneficiary 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.

7. The treatment carries a high degree of risk because of the enormity or unusual nature of the procedure (e.g., organ transplant, open heart surgery).

8. The treatment recommended involves amputation of an extremity (e.g., amputation at or above the tarsal region).

So if you have a Social Security disability hearing and the ALJ denies your failing to follow prescribed treatment and any of the above exceptions apply, you should consult with a disability attorney to see if pursuing an appeal is the right way to go.

Contact us today to learn more about how we can help ensure you receive the benefits you are entitled to. Please call (303) 534-1958 or complete a contact form on our website.


About the AuthorJoe Whitcomb

Joe Whitcomb is the founder and president of Whitcomb, Selinsky, PC (WSM). In addition, he manages the firm and heads up the Government Procurement and International Business Transactions Law sections. As a result of his military service as a U.S. Army Ranger and as a non-commissioned officer in the Air Force, he learned mission accomplishment. While serving in the Air Force, he earned his Bachelor’s in Social Sciences and a Master’s in International Relations. His Master’s emphasis was on National Security and International Political Economics. After his military career, Joe attended law school at the University of Denver Sturm College of Law.