Social Security divides medical sources into two categories: “acceptable medical sources” and other health care providers who are not “acceptable medical sources”. Nurse Practitioners are in the category of other health care providers who are not “acceptable medical sources”.

In Social Security Ruling 06-03, SSA explains that it makes the distinction for three  reasons: First, SSA needs evidence from “acceptable medical sources” to establish the existence of a medically determinable impairment. Second, only “acceptable medical sources” can give SSA medical opinions.  Third, only “acceptable medical sources” can be considered treating sources whose medical opinions may be entitled to controlling weight.

This means that the medical evidence from a Nurse Practitioner can not establish your medical impairment at Step 2 of the Sequential Evaluation. You must establish your medical impairment in order to win your benefits.

This means that if all of your treatment is by a Nurse Practitioner, then you have no one who can give SSA a medical opinion about how your medical impairments restrict what you can do.

In a card game, a King beats a Jack. Social Security does not even treat a Nurse Practitioner as a Jack–more like a low card. This is not good for your case!

On July 29,2009, Commissioner Astrue was joined by Marie A. Bernard, M.D., Deputy Director of the National Institute on Aging, National Institutes of Health, and other Social Security officials, to hear testimony from some of the nation’s leading experts on early-onset Alzheimer’s disease and related dementias about possible methods for identifying and implementing Compassionate Allowances for people with early-onset Alzheimer’s. Early-onset Alzheimer’s and related dementia has not yet been added to the list.

Here is the list of the first 50 impairments — 25 rare diseases and 25 cancers included in Compassionate Allowances:

1. Acute Leukemia
2. Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
3. Alexander Disease (ALX) – Neonatal and Infantile
4. Amyotrophic Lateral Sclerosis (ALS)
5. Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
6. Astrocytoma – Grade III and IV
7. Bladder Cancer – with distant metastases or inoperable or unresectable
8. Bone Cancer – with distant metastases or inoperable or unresectable
9. Breast Cancer – with distant metastases or inoperable or unresectable
10. Canavan Disease (CD)
11. Cerebro Oculo Facio Skeletal (COFS) Syndrome
12. Chronic Myelogenous Leukemia (CML) – Blast Phase
13. Creutzfeldt-Jakob Disease (CJD) – Adult
14. Ependymoblastoma (Child Brain Tumor)
15. Esophageal Cancer
16. Farber’s Disease (FD) – Infantile
17. Friedreichs Ataxia (FRDA)
18. Frontotemporal Dementia (FTD), Picks Disease -Type A – Adult
19. Gallbladder Cancer
20. Gaucher Disease (GD) – Type 2
21. Glioblastoma Multiforme (Brain Tumor)
22. Head and Neck Cancers – with distant metastasis or inoperable or uresectable
23. Infantile Neuroaxonal Dystrophy (INAD)
24. Inflammatory Breast Cancer (IBC)
25. Kidney Cancer – inoperable or unresectable
26. Krabbe Disease (KD) – Infantile
27. Large Intestine Cancer – with distant metastasis or inoperable, unresectable or recurrent
28. Lesch-Nyhan Syndrome (LNS)
29. Liver Cancer
30. Mantle Cell Lymphoma (MCL)
31. Metachromatic Leukodystrophy (MLD) – Late Infantile
32. Niemann-Pick Disease (NPD) – Type A
33. Non-Small Cell Lung Cancer – with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
34. Ornithine Transcarbamylase (OTC) Deficiency
35. Osteogenesis Imperfecta (OI) – Type II
36. Ovarian Cancer – with distant metastases or inoperable or unresectable
37. Pancreatic Cancer
38. Peritoneal Mesothelioma
39. Pleural Mesothelioma
40. Pompe Disease – Infantile
41. Rett (RTT) Syndrome
42. Salivary Tumors
43. Sandhoff Disease
44. Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
45. Small Cell Lung Cancer
46. Small Intestine Cancer – with distant metastases or inoperable, unresectable or recurrent
47. Spinal Muscular Atrophy (SMA) – Types 0 And 1
48. Stomach Cancer – with distant metastases or inoperable, unresectable or recurrent
49. Thyroid Cancer
50. Ureter Cancer – with distant metastases or inoperable, unresectable or recurrent

“When talking with Social Security disability claimants, I often hear a statement like “I can’t work because I have been diagnosed with bipolar disorder” (or degenerative disc disease, or fibromyalgia). The claimant makes the statement like the matter is settled. The reasoning seems to be: since there is a doctor’s diagnosis of my impairment, my disability claim should be granted.

Unfortunately, that reasoning is not at all correct. It is not the diagnosis of the impairment but the severity of the impairment that matters in a Social Security disability claim. And I explain this to clients every day.

The diagnosis is just the beginning. A good beginning to be sure, since the diagnosis satisfies the medically determinable requirement in a Social Security disability claim. But the important thing is the severity of your impairment. How much does it affect your functionality? How does it affect your ability to work? These are the important questions in a Social Security disability case.

What is missing from almost every denied Social Security disability claim is evidence establishing a claimant’s functional limitations. A medical diagnosis alone does not establish any functional limitations. And unfortunately, a patient’s medical records usually have little information regarding functional limitations (medical records are created and maintained for medical providers to track a patient’s medical care, not to establish disability).

So remember, it’s not the diagnosis but the severity of the impairment that matters. And a Social Security disability lawyer spends a great deal of time trying to obtain evidence – often a medical source statement – that will establish a claimant’s functional limitations.”

I am in complete agreement with Mr. Gates observations. I have the same conversations with people all the time. I remind people that they need to tell the whole truth about their inability to work. You really do need to know the rules of Social Security disability.

“SSA is responsible for the Nation’s two primary Federal disability programs: Disability Insurance and Supplemental Security Income. Over the last 5 years, our disability workloads have grown significantly, and this trend will accelerate as baby boomers reach their most disability-prone years. We cannot lose sight of the fact that this longer-term increase in disability claims is coming, regardless of when the American economy begins to recover.

The time is now, despite the challenges of the economic downturn and the hearings backlog, to modernize the disability process to avoid future backlogs and provide applicants with speedy decisions. Technological improvements alone cannot remedy the issues in the disability process. We must revise the policy and medical guidance at the core of the program to align with medical technology and knowledge. A modernized disability process will help us to better serve the public and fulfill our obligation to provide a fair process to the American people. The following initiatives form the core of our disability modernization program in FY 2010:

Improve Occupational Information for Making Disability Determinations and Decisions

SSA is working on the development of a new occupational information system that will replace the out-of-date Dictionary of Occupational Titles (DOT) used in SSA’s disability determination process. The DOT was originally created by the Department of Labor (DOL) and has become a cornerstone of our disability policy. We rely on the descriptions of work in the DOT to determine whether individuals can do their usual work or any other work in the U.S. economy. However, DOL has not updated the DOT since 1991 and has no plans to do so. DOL’s replacement for the DOT, O*NET, does not serve SSA’s purposes. It is critical that we base disability determinations on current job information.

SSA awarded contracts in 2008 for the use and evaluation of updated occupational information. In December 2008, Commissioner Astrue established the Occupational Information Development Advisory Panel to provide advice and recommendations on plans to replace the DOT. The panel advises SSA on the creation of an occupational information system for disability programs and adjudicative needs. Specifically, the panel will advise on medical and vocational analysis, occupational analysis, data collection, use of occupational information, and other areas. The panel had its first meeting in February 2009 and has three more meetings scheduled this year.

SSA will continue its efforts to replace the DOT in FY 2010, when the agency will begin identifying the physical and mental abilities and skill levels that occupations require, developing the means of gathering occupational information, and researching assessment of residual functional capacity.

Update Medical Listings

SSA uses the Listings of Impairments to describe impairments considered severe enough to prevent an individual from working and earning above a defined level. The listings are a critical factor in our disability determination process; however, we have not updated some listings in decades. We are working to expand the listings to include rare disease and permanently disabling conditions. We are also working to update all of our existing listings by the end of FY 2010. We have also developed a long-term schedule to ensure that in the future we update all listings, as needed, but at least every 5-7 years. Updated listings allow disability examiners and SSA adjudicators to identify eligible applicants early in the disability determination process and result in improved disability decisions.”

All of this sounds good in the abstract. However, ONET was going to replace the DOT for disability hearings until it was determined it would not actually work in a disability hearing. Listings have been updated and some old listings have been completely removed because the listing was supposed to be covered by the new listing; however, the ALJ’s and Medical Experts do not always understand this. SAA has rolled out other plans that were supposed to help but only made things worse. Time will tell if these “improvements” actually improve things in the real world.

Just because your doctor told you six months ago that there was nothing more the doctor could do for you – this is as good as it gets – does not mean that you can stop going to the doctor. If you do not have medical records (that third party verification) for those six months, the judge can say that there is no proof that your medical condition did not improve during that time or that it stayed the same, therefore you have not proved that your medical condition prevented you from working those six months. This could result in a complete loss of benefits. If you have seen the doctor in that time, then the medical records can document that you did not improve. Also, the doctor may document some facts that the doctor did not previously document. These facts may be what convince the judge that you can not work.

Another problem is that most doctors do not put in their medical records that they told you that this is as good as it gets. When you tell the judge that is what the doctor says, there is no way to verify this in the medical records. In preparing your case to win, you must assume that without third party verification of what you say that the judge will not believe you. Otherwise you are gambling that maybe you will be lucky and the judge will believe you. Why would you want to gamble on winning when you can continue to see the doctor and generate the third party evidence (medical records) that will show what your medical condition was?

I told the nurse that I hated the pain scale as I have had clients who had rated their pain at a number that the judge in their disability case thought was the wrong number for what they were describing. “What is a level 5, what is a level 8?” I asked. I was over-thinking this and the nurse just wanted to chart it, give me my shot, and move on. She agreed with me that the number was arbitrary, but that she needed to chart it. So I picked a number.

As I lay in my hospital bed, I could not help but think of the countless hearings I have been in where the judge has asked my clients to rate their pain. One judge said that a 10 was the worst pain you could imagine. What he did not say was that if you said a 10 he automatically disbelieved you as he believed that no one could be sitting there with a pain level of 10 (he never told them that to their faces). Other judges had no problem with a pain level 10.

I hate the pain scale because there is no way for us all to calibrate our measurements so that they are all the same. I have observed clients in great pain who state that their pain is a 6. I have had other clients who appeared to be in less pain that also said that their pain was a 6. So what is a level 6?

How did I want to compare the pain I had the two nights that I could not sleep from the pain to the pain that I had after surgery? There was a time I thought my pain might be a 10, but what about those I have seen who suffered more than I did those two nights I could not sleep? If delivering a baby is a pain level of 10, was my pain that bad? Since I am a man, I will obviously never know how my pain compares to the pain of childbirth.

So I started to answer the nurse the way I advise my clients to tell their medical providers about the pain. I started to describe the pain without putting a number on it. I started to give the nurse details about the pain. How it felt. Where it was. What aggravated it (at that point for me it was just shifting in the bed). What kind of pain it was ( by this I mean was it hot, cold, constant, throbbing, stabbing, electrifying ect.) How intense it was. She wrote down my description. Now a “real” description of my pain was recorded.

It is important to get a “real” description of your pain recorded into the medical records every time you visit your medical provider. This will allow the judge to read your descriptions and know how your pain was at the beginning of your disability and how the pain continued during all of the time that was disabled. If you only give a number, you and the judge may have different ideas as to what that means. The only way you could “both be on the same page” would be for you to calibrate with the judge your pain measurements on the same scale to discover that your 6 is his or her 8. The problem is that this can not happen until the hearing, and the judge will have already read the file and decided how bad your level 6 pain is. It may be hard for the judge to change his mind. If your full blown description of the pain is in your medical records, the judge will read that as he reads the file and decides how bad your pain is.

Your full blown description of the pain in your medical records is vital to your case.

Next day I struggled on. Boy, is this cold annoying, I thought. On Wednesday morning, at about 10:30 (if I had looked at my watch I could tell you the exact time), both my ears suddenly ‘closed off’ and both suddenly began to hurt with that pain you get when you have a cold and fly on a jet. Ah, I thought, I will just take some decongestant when I go home tonight, and my ears should open up on their own soon. By 2:30 PM, I could not take the pain anymore and finally went home to take some decongestant. I waited for my ears to open and the pain to go away. At 1 AM, when I still could not fall asleep due to the pain, I finally wised up and took some Tylenol.

Next morning I thought the pain had gone away and debated about calling the doctor. I finally decided to let him take a look. I continued to work from home. At my appointment that afternoon, he found that both my ears did “look bad.” Double ear infections. Antibiotics were prescribed.

Did I stay home and rest the next day? No. Stubborn me, I went to work for a while, until I finally recognized that I was worthless. Did I stay home on Monday to get well? Nope. I thought I was doing so much better. I could work. Stephanie commented that I looked tired. I finally went home. I will not bore you with the details of how I continued to go into work when I should have stayed home and gotten well because I did not realize how sick I was.

I should have known better. Stephanie has worked for me for several years. She knows me. When she told me I looked pale, I should have remembered that the last time she commented about how I looked pale, I finally went to the doctor to discover I had severe bronchitis/walking pneumonia and was sick for three weeks. When Stephanie tells me I look pale, I should know that means ‘you need to see a doctor immediately because you are really sick.’ I did not get the hint. But both times, I did not want to believe that I was that sick, I did not think I felt that sick, and it never registered to me how sick I really was. I thought I was capable of doing much more than I could.

I see this all the time. My disabled clients want to believe that they can do more than they really can. I remember the man who came in with his family. They had finally gotten him to come in and begin to think about applying for his Social Security Disability. He and his wife sat in the first row and his grown kids were in the second row. I asked him to tell me what he could still do. While he was telling me, his kids were shaking their heads “NO!” until one finally said: “Dad, you have not been able to do that for three years.” He turned around and looked at his child. The other ones all shook their heads in agreement. Dad, like me, did not think he was that bad off and it had never registered with him what he could not do. Both of us were not good ‘eye witnesses’ about ourselves. We needed those that really knew us to tell us the truth about how we really were. Neither of us invited the assessment. We just assumed that we knew what we could do. Neither of us decoded the hints that were given to us.

I advise client’s to invite their loved ones to give them an honest, blunt, no holds barred assessment of what they can and can not do. Pick a good day when you can take it, and give them permission to tell you what they see. Go to your doctor and find out what he or she really thinks you can do. Evaluate what they say. Test it out. You may find out that like me, you are a really bad ‘eye witness’ for yourself when you do not have this information.

When you talk to Social Security about your medical conditions, you want to tell the truth, the whole truth, and nothing but the truth. Don’t be a bad witness for yourself. Test your assessment against what your family and your doctor sees. See if you need to ‘wake up and smell the coffee’ like I needed to. Don’t let you fool yourself into thinking you can do more or less than you can. Take the steps to become a good witness for yourself by figuring out what you used to be able to do before your medical impairments and what you can do now.

When you are proving that it is your medical impairment that is keeping you from working, SSA will want to know how your medical impairment prevents you from being able to work. SSA will look to see if the medical impairment you have could produce the problems you describe. If the medical community generally does not believe that you could have the problems you describe as a result of the medical impairment you identify, then SSA will find that your medical impairment does not prevent you from working. For example, if you identify that you have a hang nail, that would not explain why you have back pain that prevents you from working. Social Security would ignore that you have back pain because you have not proved that your impairment, a hang nail, causes the back pain that prevents you from working.

There is a big difference between what you know and what you can prove. You will not be able to win your disability claim based only on your testimony about how your medical impairment affects you. Even though your immediate family knows you the best and they are most likely to know what you could do before you were disabled and what you can now do, SSA is suspicious of this testimony because SSA thinks your family is likely to say anything to help you get the disability money. SSA will be looking to your medical records to decide how severe your medical impairment really is. From your medical records SSA will be deciding how long you can sit, stand, and walk in an eight hour competitive work day. SSA will also decide from your medical records how much you can lift and carry and how often you could do this, your ability to reach, handle, and finger and many other physical tasks. Any limitations in your abilities must be due to your medical impairments. And the best source of evidence is usually your medical records.

Behind every question that Social Security asks is the real question: how does your medical impairment keep you from working and how does what we are now talking about show how your medical impairment keeps you from working?<–>

The best proof of you having a medical impairment is the medical records that document a doctor diagnosing the impairment. When someone has something wrong and the doctors just can not figure out what it is, this can be a problem. This is why I believe that the best thing you can do for your claim is to get as much medical treatment as possible. There is still an art to practicing medicine, and it can take many visits to the doctor before the doctor gets that one piece of the puzzle that causes all of the other pieces to fall into place so that the doctor can give a diagnosis.

Sometimes the doctor has a pretty good idea what the problem is, but can not give an official diagnosis because one of the items that is required for that diagnosis is missing. For example, if the doctor must find six things to give the diagnosis, but can only find five, then most doctors will not give the official diagnosis of “X”. They may go ahead and treat the situation as if it is “X”, and they may tell the patient that the doctor thinks that the person has “X”, but no where in the chart will the doctor say that the person has “X”. With many visits, the doctor may learn information so that the doctor can confirm that the person has “X”. Without a diagnosis, many at Social Security do not want to find that you have proven you have a medical impairment even though you know that medically something just is not right. It is important that you understand the difference between what you know and what you can prove. Seeing your doctor as often as you can will help prove what you know.