More than one Social Security Administrative Law Judge (“ALJ”) has told me in recent months that they have been instructed to insist on having contemporaneous treatment records to support the opinions of claimants’ doctors. That requirement lacks a legal basis for several reasons.
ALJs seem to have no problem accepting the opinions of non-examining doctors even though they have no treatment records to support their opinions. The Social Security rules specify that treating doctors should be contacted if it is believed that their opinions lack support, and a doctor can provide a narrative report as an answer. That only makes sense because the purpose of treatment records is to provide a reminder to the doctor of something he or she may want to remember, not to serve as comprehensive medical evidence in a legal proceeding. The Social Security rules even recognize that contemporaneous records may not be available, e.g., when dealing with an onset date, and that other types of evidence, such as claimant testimony, can provide the requisite evidence.
ALJs and the State agency have been instructed to insist on more evidence to support a case in order to reduce the number of disability claims getting approved. Contemporaneous records are even being required in compassionate allowance cases. And both ALJs and State agency clerks have been insisting that claimants provide their psychotherapy notes.
Mental health notes have been privileged from disclosure to ensure that proper treatment can be obtained. Social Security has a Fact Sheet for Mental Health Care Professionals that states, “Social Security recognizes the sensitivity and extra legal protections that concern psychotherapy notes (also called “process” or “session” notes) and does not need the notes.” This proves that the demand for actual psychotherapy notes is designed to avoid approving disability benefits. According to the Fact Sheet, a letter from the mental health provider identifying the claimant’s diagnosis and prognosis, prescribed medication, session times, the modalities and frequencies of treatment, results of any clinical tests, and summary of the functional status, treatment plan, and symptoms is all that is needed.