FAILURE TO FOLLOW TREATMENT

Every now and then a client appears who, upon review of medical reports, appears not to follow one or more of his/her treating physician's recommendations on treatment. What is the effect of such conduct?

As a general rule, Social Security can use information on whether your client has been following his/her doctor's recommended treatment, taken prescribed medication, been using prescribed devices such as a cane or brace, and keeping medical appointments. If the client has failed to follow recommended treatment, the ALJ could use that failure to conclude that your client's condition is not as severe as alleged.

It is always of concern when the Administrative Law Judge questioning your client –making specific comment on the fact that the client failed to appear for doctor appointments; or, seems to have difficulty following prescribed treatment; etc.

This is of such a concern because if it appears that claimant's impairment can be remedied by treatment, to the point he/she could return to some type of work, the claimant must follow the treatment prescribed by claimant's physician. 20. C.F.R. §§ 404.1530(a)

If claimant fails to follow prescribed treatment, absent a good excuse, he/she cannot be found disabled. Ostronski v. Chater, 94 F3d 413 , (8^th Cir. 1996). Claimant failed to take prescribed pain medication or seek regular medical treatment, claimant rejected doctor's recommendations of surgery...all were sufficient to up-hold the ALJ denial of benefits.

When a client presents such facts, it is necessary to talk with them and review the medical records to determine if there was a 'good excuse' for not following prescribed treatment, or, if no 'good excuse', would compliance have made a difference in being capable to being competitively employed,-- “ doctor, would Mr/Ms X ability to work be restored if prescribed treatment were followed?” Obviously, if the treatment had been followed and it still would not restore claimant's ability to work, whether or not treatment was followed is irrelevant.

What if the doctor believes that it could have sufficiently improved the client's health? Then it is important to determine if there is a “good excuse” for the failure to follow the doctor's orders.

If it is a failure to take medication, why? Sometimes the side effects of the medication is worse than the symptoms of the impairment. Sometimes the claimant is afraid of addiction. The claimant may be offered surgery that did not work in the past. Surgery in general presents a conflict among the circuit courts.  Is it proper to force an invasion on the body when the client has in his or her mind a justifiable reason to say “no”?  i.e.  Is it proper to demand that a claimant under-go surgery, when the claimant has a heart felt fear of surgery and the problems that can be associated with surgery? Consider Ostronski, supra.

It is the commissioner's burden to show that claimant's refusal of treatment was not justified. Consider,

Walker v. Callahan, 990 F. Supp 1283 (D Kan 1997) Before the ALJ may rely on claimant's use of low-cost clinic or failure to pursue treatment or take medication as support for determination that testimony lacks credibility, the ALJ should consider whether 1. treatment was prescribed; 2. treatment was refused; 3. would restore the claimant's ability to return to work; and if so, refusal was based on a “good excuse”.

What if claimant is willing to accept treatment, but cannot afford it and there is no community agency providing such treatment within claimant's resources? Consider: SSR 82-59 – “4. The individual is unable to afford 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. All possible resources (e.g., clinics, charitable and public assistance agencies, etc.), must be explored. Contacts with such resources and the claimant's financial circumstances must be documented. Where treatment is not available, the case will be referred to VR.”

Religious beliefs that run contra to the recommended treatment always raises an issue of allowance. Again consider SSR 82-59 – “1. Acceptance of prescribed treatment would be contrary to the teachings and tenets of the claimant's or beneficiary's religion. A finding of disability would be in order where the evidence establishes that the disabled individual rejects prescribed treatment on the grounds that he or she is a member of a church which teaches that healing may be accomplished only through faith or prayer. In such a case the claimant will have to identify his church, prove he is a member, and the church's position on medical treatment must be documented (there is an exception for Christian Science—you need not develop the church philosophy on medical treatment).”

If this is an issue in a case, a good place to start is SSR 82-59, it sets forth the commissioner's position on a number of these issues, in addition case law can flesh out the issues.

Of particular difficulty in this area is conditions which appear to be the result of 'bad habits'. The lay thought would be remove the 'bad habit” and the condition is remediable and as such refusal to 'act normal' should bar recovery.

When you ask a 'man on the street' - “Should obese people be granted disability benefits?” Most would argue that an obese person should not be allowed benefits, --”Go on a diet”. “Watch what you eat” etc.

Drugs and alcohol have their own provisions in the law that restricts benefits. Which is a shame. In many cases the drug user or alcoholic cannot stop, they have an addiction and try as they will, even with professional intervention, they continue to relapse. Congress in its questionable wisdom, has proscribed both outside the realm of benefits.

Smoking is another issue that pops up in the cases, i.e. Kisling v. Chater, 105 F.3d 1255 (8^th Cir. 1997) Medical evaluation of the claimant showed that her respiratory problems were related to smoking, failure to follow prescribed course of remedial treatment without good cause was grounds to deny benefits.

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