Adverse Evidence

Friday, November 25th, 2011

When seeking a fully favorable decision on the record (“OTR”) to avoid a hearing on an application for Social Security Disability (“SSD”) benefits, it is important to address the adverse evidence as well as the supporting evidence.

I represent a 42 year old woman who worked in automotive customer service since she graduated from high school in 1988. The treating neurologist said the claimant lacked the ability to perform sedentary work due to cervical radiculopathy and an Arnold Chiari malformation. An Attorney Advisor approved the claimant’s OTR today, accepting the neurologist’s cervical radiculopathy diagnosis, but rejecting the Arnold Chiari malformation diagnosis.

The claimant had a cervical MRI that revealed, among other things, a herniated disc compressing the spinal cord and nerve root. While one head MRI revealed an Arnold Chiari malformation, the other revealed less severe findings that did not meet the diagnostic criteria of an Arnold Chiari malformation. Nonetheless, the Attorney Advisor still gave controlling weight to the treating neurologist’s opinion.

A Social Security doctor rejected the neurologist’s opinion and claimant’s complaints. Investigation disclosed that the Social Security doctor was an endocrinologist, which I argued was unqualified to evaluate the claimant’s neurological condition. That point was proven by the Social Security doctor’s suggestion that the claimant have a psychological exam, which obviously was completely irrelevant to the claimant’s impairments. More importantly, the Social Security doctor said that the treating neurologist’s clinical findings were disproportionate to the claimant’s MRIs, which showed spinal cord and nerve root compression. No neurologist would concur with the Social Security doctor’s absurd conclusion.

The Attorney Advisor may have had concerns about the reliability of the treating neurologist’s opinion since there was equivocal evidence regarding the Arnold Chiari malformation diagnosis. Given that concern, the Attorney Advisor could have rejected the OTR and left it to the Administrative Law Judge to evaluate the treating neurologist’s opinion. If the Attorney Advisor was ambivalent about the OTR, by utterly rebutting the viability of the Social Security doctor’s opinion, which was the only adverse evidence in the file, it should have removed any concerns about approving the OTR.

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