What – or who – is a treating physician? A treating physician is a medical doctor who provides medical treatment for you and has, or has had in the past, an ongoing relationship with you. There needs to be a history of treatment between the medical provider and the patient for the medical provider to be considered a treating physician.
Why Are Treating Physicians Important In Disability Cases?
To understand this, we need to look at the history of the “Treating Physician Rule”. The Treating Physician Rule is a legal concept that began in the context of Social Security Disability claims. Under the Social Security Administration’s rules and regulations, the opinion of a treating physician is given “great weight” at a Social Security disability or SSI disability hearing before an Administrative Law Judge (ALJ). This is because the disability applicant’s treating physician is presumably in the best position (based on the history of treatment) of being able to render an informed and valid opinion regarding an applicant’s prognosis and functional abilities. Thus, in a Social Security disability claim, ALJs are required to give substantial weight to the opinions of a treating physician.
There is no Treating Physician Rule in ERISA long term disability insurance claims. However, as described below, some courts have adopted principles from the Treating Physician Rule.
Application of the Treating Physician Rule with De Novo Review of LTD Claim
In Anderson v. Liberty Mutual Long Term Disability Plan, the United States District Court for the Western District of Washington applied the Treating Physician Rule. In Anderson, the Plaintiff sought disability benefits from Liberty Mutual, the insurer of his ERISA governed plan. The parties stipulated that the court was to conduct a de novo review. The court found that, under a de novo standard of review, the plaintiff was clearly entitled to benefits during the “own occupation” period and remanded for further review of plaintiff’s entitlement to benefits after the “own occ” period during the “any occupation” period. The most interesting (and plaintiff-friendly) holding is the court’s finding that the plaintiff’s treating physician’s opinion of disability “alone is persuasive that Ms. Anderson is disabled under the plan”. The court made that finding even in the face that non-examining physicians may have opined otherwise:
5. It is clear from the record that Ms. Anderson’s job required her to use a computer on a near constant basis. Defendants have not offered evidence, and it is hard to imagine, how Ms. Anderson could perform her job without using a computer. Doctors who personally examined Ms. Anderson, including Dr. McClincy and Dr. Langman, concluded that Ms. Anderson’s condition made it impossible to for her to reliably perform this essential job function. R00414; R00513-14. This evidence alone is persuasive that Ms. Anderson is disabled under the Plan. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676-79 (9th Cir. 2011) (evidence showing that the doctors who personally examined the claimant concluded that he was disabled, even though insurance company’s non-examining physicians found otherwise, supported finding that the claimant was disabled under terms of the plan).
Court Declines to Apply Treating Physician Rule, but Still Finds Treating Physician’s Opinion More Compelling
In the case cited above, the court directly applied the treating physician rule to award the plaintiff disability benefits under a de novo standard of review. The United States District Court for the Central District of California does not go quite that far in Carrier v. Aetna Life Insurance Company; however, the plaintiff prevailed under a de novo standard of review and held entitled to benefits under the “own occupation” definition of “disability” because the court found the plaintiff’s treating physician opinion to be more compelling than the opinions of Aetna’s reviewing doctors. This court, unlike the case cited above, does note that there is no treating physician rule in ERISA cases, but nevertheless finds the plaintiff’s treating physician’s opinion more compelling for factual reasons in the individual case.
Defendant, of course, presented the conclusions of several doctors who disagreed with Dr. Corrado’s findings after conducting peer reviews. Plaintiff challenges these reviews in part on the basis that none of these doctors ever treated Plaintiff or even examined her in person. Indeed, they performed their analyses based on the medical examinations performed and records kept by Dr. Corrado. As Defendant argues, however, Defendant was not required to send a doctor to perform an in-person examination of Plaintiff. See Brown v. Conn. Gen. Life Ins. Co., No. C 13-5497 PJH, 2014 U.S. Dist. LEXIS 175112, at *37–38 (N.D. Cal. Dec. 17, 2014) (“[W]hen the court reviews a plan administrator’s decision de novo, the burden of proof remains with the claimant to establish that he/she is entitled to benefits and does not shift back to the administrator once the claimant has advanced some evidence to support his/her claim, as plaintiff suggests in arguing that [defendant] was obligated to arrange for an in-person medical examination rather than relying on the analysis of the file by its in-house nurse reviewer and in-house psychiatrist.” (internal citation omitted)). Similarly, the Court does not grant deference to Dr. Corrado’s conclusions simply because he is the physician who has been treating Plaintiff. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003) (“Nothing in [ERISA] suggests that plan administrators must accord special deference to the opinions of treating physicians.”).
Nevertheless, the Court finds Dr. Corrado’s conclusions sounder than those presented by the peer reviewers. Many of the opinions rendered by these reviewers are presented in conclusory fashion, making it unclear how they reached such starkly contrasting results from those of Dr. Corrado despite reviewing the same materials. For example, Dr. Mendelssohn’s report largely summarizes the results of Dr. Corrado before simply concluding that there was “a lack of specific examination findings and behavioral observations to clearly substantiate the claimant’s current cognitive functioning.” (AR1346–47.) The greatest detail she provides in her review concerns a perceived discrepancy between Dr. Corrado’s characterization of Plaintiff’s suicidal tendencies and his notes on the subject. Specifically, Dr. Corrado wrote in his notes that Plaintiff “continue[d] to feel suicidal and ha[d] a plan” but that she promised not to harm herself, but in a phone call with Dr. Mendelssohn he stated that she was “extremely suicidal.” (AR1336, 1347.) The Court does not find this discrepancy material, particularly given that his notes clearly corroborate that Plaintiff was suffering from suicidal inclinations.
The Importance of a Reliable Treating Physician
A disability applicant should try not to bounce around from one doctor to the next. That’s because a doctor with whom you do not have an established medical history may not be considered a reliable “treating physician.” In addition, you should try to make sure your treating physician is a doctor. The opinions from licensed physicians (MDs), osteopaths (DOs), optometrists, podiatrists, psychologists and speech pathologists will carry greater weight than nurse practitioners, chiropractors, therapists, naturopaths and other medical providers who are not MDs, DOs or PhDs.
When filing for long term disability claims, it is important to have your treating physicians write statements that explain your disability. These statements will include how you were diagnosed, how the doctor is treating you, what medications you are taking, and what limitations you have, including every day and work. Having statements from all of the doctors that are treating you will dramatically improve your chances of being approved.
Often, these statements can make or break your case, so be sure your physician includes everything about your disability:
- How was it diagnosed, and what evidence is there to support that diagnosis (like lab results)?
- What is the prognosis?
- What is the treatment plan, and have you stuck to your treatment plan?
- What medications or assistive devices are you prescribed, and have you been successful with them?
- Are you receiving therapy such as physical, occupational, or speech?
- Has the therapy been successful, or have there been setbacks?
- What kind of quality of life will you have with this diagnosis?
Before Requesting A Statement, Talk To Your Doctor
Before requesting a statement from your doctor(s), talk to them about your intent to file for disability. If they are not in agreement with you, their statement may not necessarily help your case, but you can ask them to prepare a residual functional capacity (RFC) report for you. If they do agree that you do need to apply for benefits, then they can begin the process of preparing your statement.
What If My Doctor and the Independent Medical Examiner Do Not Agree?
In addition to your doctor’s statements, the insurance company will most likely ask you to submit to an independent medical examination (IME). Ask is probably not the right word – they will tell you to submit to an IME. The insurance company does have the right to request this of you and can deny your claim if you do not agree to it.
There is a chance that your doctor and the IME will not agree. It’s not uncommon. Your doctor works for you, and the doctor conducting the IME is paid by the insurance company. The insurance company would like for the IME to prove that you can work so they can deny your claim. If your case goes to an administrative law judge, they will also look at the evidence supplied by your doctor who has a long history with you, unlike the IME examiner who has only spent one day with you.
If Your Claim Is Denied
If you submit your evidence and your claim is denied, your doctor can still help you during your appeal process by providing you with additional evidence to support your claim. Your letter from the insurance company will outline exactly why your claim has been denied. You can use your letter to guide you when gathering more supporting documents.
If you are having trouble understanding what they want, consider consulting a disability attorney. An experienced disability attorney has reviewed hundreds of letters like yours and can help read between the lines to make sure you are not missing anything before you exhaust your administrative appeals. Research has shown that your chances of getting your claim approved with an attorney are much higher than without one.
Statements from your doctors are extremely important to get your claim approved. If your claim is denied, your doctor can help you gather additional evidence to support your claim. If you are having trouble fighting the insurance company, an experienced disability attorney can help you, and research has proved that more cases are approved with an experienced disability attorney.
If you have been denied your long term disability benefits, the legal team at Ortiz Law Firm can help you cut through the red tape and fight for your disability benefits no matter where you live in the United States. Give us a call today to discuss your claim at (866) 853-4512.
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