(PPS-78)

SSR 82-59

SSR 82-59: TITLES II AND XVI: FAILURE TO FOLLOW PRESCRIBED TREATMENT

PURPOSE: To state the policy and describe the criteria necessary for a finding of failure to follow prescribed treatment when evaluating disability under titles II and XVI of the Social Security Act and implementing regulations.

CITATIONS (AUTHORITY): Sections 216(i), 223(d), and 1614(a) of the Social Security Act, as amended; Regulations No. 4, section 404.1530; Regulations No. 16, section 416.930.

INTRODUCTION: Individuals with a disabling impairment which is amenable to treatment that could be expected to restore their ability to work must follow the prescribed treatment to be found under a disability, unless there is a justifiable cause for the failure to follow such treatment. This policy statement discusses failure to follow prescribed treatment, explains in detail the requirements necessary for such a finding, explains the consequences of such action, and illustrates examples of justifiable causes for "failure."

POLICY STATEMENT: An individual who would otherwise be found to be under a disability, but who fails without justifiable cause to follow treatment prescribed by a treating source which the Social Security Administration (SSA) determines can be expected to restore the individual's ability to work, cannot be virtue of such "failure" be found to be under a disability. (See discussion below for title XVI "blindness" cases.)

Identifying "Failure" as an Issue

SSA may make a determination that an individual has failed to follow prescribed treatment only where all of the following conditions exist:

1. The evidence establishes that the individual's impairment precludes engaging in any substantial gainful activity (SGA) or, in the case of a disabled widow(er) that the impairment meets or equals the Listing of Impairments in Appendix 1 of Regulations No. 4, Subpart P; and
2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any SGA (or gainful activity, as appropriate) has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow prescribed treatment.

Where SSA makes a determination of "failure," a determination must also be made as to whether or not failure to follow prescribed treatment is justifiable.

Treatment Must be Prescribed by Claimant's Treating Source

A treating source(s) is any duly licensed physician(s) who is actually attending to the claimant's or beneficiary's medical needs. Where the individual does not have an attending physician, the treating physician(s) in the hospital, clinic, or other medical facility where the individual goes for medical care will be considered the treating source.

A Disability Determination Services (DDS) staff physician is not a treating source. Similarly, a physician whose only relationship to the claimant is as a consulting examiner may not be considered a treating source. Therefore, where a consulting examiner's finds establish severity and for the first time indicate that specific treatment can be expected to restore ability to engage in any SGA (or gainful activity, as appropriate), the case should not be denied for failure to follow prescribed treatment. The DDS will refer such cases to the vocational rehabilitation (VR) agency for further action.

Treatment Expected to Restore Ability to Work

While it is a treating source who must prescribe treatment in order for the issue of "failure" to arise, the judgment as to whether prescribed treatment can be expected to restore ability to work will be made by SSA. In the event the treating source states that prescribed treatment will restore ability to work, consideration should be given to such opinion. However, if despite such opinion SSA determines that ability to engage in SGA may not reasonably be expected to be restored, there is no issue of failure to follow prescribed treatment.

Where SSA believes that treatment might restore an individual's ability to engage in any SGA (or gainful activity, as appropriate), but no treating source has prescribed such treatment, a determination of allowance will be made, and the DDS will refer the individual to VR. When a hearing or appeals council (AC) decision is issued, the administrative law judge or AC will follow established procedure to request the effectuating component to make such referral if a question of restorative treatment is involved.

Development of Failure to Follow Prescribed Treatment

Where the treating source has prescribed treatment clearly expected to restore ability to engage in any SGA (or gainful activity, as appropriate), but the disabled individual is not undergoing such treatment, appropriate development must be made to resolve whether the claimant or beneficiary is justifiably failing to undergo the treatment prescribed.

Development With the Claimant or Beneficiary -- The claimant or beneficiary should be given an opportunity to fully express the specific reason(s) for not following the prescribed treatment. Detailed questioning may be needed to identify and clarify the essential factors of refusal. The record must reflect as clearly and accurately as possible the claimant's or beneficiary's reason(s) for failing to follow the prescribed treatment.

Individuals should be asked to describe whether they understand the nature of the treatment and the probable course of the medical condition (prognosis) with and without the treatment prescribed. The individuals should be encouraged to express in their own words why the recommended treatment has not been followed. They should be made aware that the information supplied will be used in deciding the disability claim and that, because of the requirements of the law, continued failure to follow prescribed treatment without good reason can result in denial or termination of benefits. Particular care should be taken to avoid any impression that SSA is attempting to influence the individual's decision. No statements should be made which could be construed in any way as interference with the doctor-patient relationship.

Development With Treatment Source -- After documenting the claimant's or beneficiary's statements concerning the refusal of treatment, it may be necessary to recontact the treating source to substantiate or clarify what the individual was told. If possible such contacts should be made by the DDS staff physician.

The nature of the information requested from the treating source will vary according to the circumstances of the case. For instance, where the claimant or beneficiary alleges that a physician has advised that the chances of obtaining good surgical results are poor, ask the treating physician what the individual was told about the prognosis with and without treatment and elicit information regarding the individual's reaction to accepting such treatment.

Where the claimant fears undergoing prescribed surgery, the treating physician should be informed of this fact and asked about his or her current recommendation(s) for treatment. If the treating source decides against surgery, there is no issue of "failure" unless the patient refused to cooperate in an alternative recommended course of treatment, which was expected to restore the individual's ability to work.

Justifiable Cause for Failure to Follow Prescribed Treatment

Under circumstances such as those described below, an individual's failure to follow prescribed treatment will be generally accepted as "justifiable" and, therefore, such "failure" would not preclude a finding of "disability" or that disability continues.

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 or beneficiary must be asked to identify church affiliation. In addition, a statement or other information from either church authorities or other members of the religious order must be obtained to substantiate that the individual is a member of the church. Additionally, the church's position relative to medical treatment must ordinarily be documented (see note below for exception) by obtaining either church literature or a statement from church authorities concerning the teachings and tenets of the church.
NOTE: In Christian Science cases, it is not necessary to develop church teachings since it is well established that such teachings proscribe acceptance of medical treatment. In these cases, a statement by a Christian Science practitioner or church authority verifying the individual's membership suffices.
2. Cataract extraction for one eye is prescribed but the loss of visual efficiency in the other eye is severe and cannot be corrected through treatment.
3. In an unusual case, a claimant's or beneficiary's fear of surgery may be so intense and unrelenting that it is, in effect, a contraindication to surgery. If a treating source who had advised surgery later decides that the individual's fear is so great that the individual is not a satisfactory candidate for surgery, there is no issue of "failure."
Where fear of surgery is suggested to be extreme, but the treating source has limited contact with the person and is unable to indicate the significance of the fear, an independent examination by a psychiatrist may be warranted as a means of resolving whether the fear contraindicates surgery.
Attendant to allegations of fear, it is not uncommon to see surgery refused on the grounds that the absolute success of such treatment has not been "guaranteed." No physician can guarantee the results of a major surgical procedure since any surgery generally entails some degree of risk. An individual may also attempt to justify refusal of surgery on the grounds of alleged personal or third party knowledge of persons who did not improve, or perhaps worsened, following surgery similar to that recommended to the individual by a treating physician. However, such reason(s) for nonacceptance of surgical treatment will not, in and of itself, negate a finding of "failure."
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.
5. Any duly licensed treating medical source who has treated the claimant or beneficiary advises against the treatment prescribed for the currently disabling condition. Thus, if a person has two treating sources who take opposing views regarding treatment, one recommending and one advising against the same treatment, failure to follow the recommended treatment was justifiable. (Where an individual chooses to follow treatment recommended by one treating source, to the exclusion of alternative treatment recommended by one or more other treating sources, the issue of "failure" does not arise.)
6. The claimant or beneficiary is presently unable to work because of a condition for which major surgery was performed with unsuccessful results, and additional major surgery is prescribed for the same impairment.
7. The treatment carries a high degree of risk because of the enormity or unusual nature of the procedure (e.g., organ transplant, open heart surgery).
8. The treatment recommended involves amputation of an extremity (e.g., amputation at or above the tarsal region).

The specific reasons listed above are not all-inclusive as acceptable justifications for refusing to accept prescribed treatment. A full evaluation must be made in each case to determine whether the individual's reason(s) for failure to follow prescribed treatment is justifiable.

Adjudication

Based on the evidence in file, SSA may decide that it appears that the claimant or beneficiary does not have a good reason for failing to follow treatment as prescribed by a treating source and that the treatment is expected to restore ability to engage in any SGA (or gainful activity, as appropriate). However, before a determination is made, the individual, or in the case of incapable individuals the person acting on their behalf, will be informed of this fact and of its effect on eligibility for benefits. The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.

It is very important that the individual fully understand the effects of failure to follow prescribed treatment. In many cases, an adverse determination on this basis will mean that the individual will not later be able to meet the requirements for entitlement even if he or she has undergone or proposes to undergo treatment. This is because at the time when the individual agrees to follow prescribed treatment, such requirements as duration (see SSR 82-52 (PPS-89: Duration of the Impairment)) or insured status may no longer be met. (See discussion below under "Effect of Adverse Determination on Subsequent Decisions.")

Initial Claim -- If a determination is made that within 12 months of onset failure to follow prescribed treatment has occurred and it is not justifiable, the claim must be denied because the duration requirement is not met. If the determination is made that "failure" did not occur until at least 12 months after onset, a period of disability may be established, with payment of benefits to continue as usual through the second month after the month disability ends.

The issue of failure to follow prescribed treatment should be resolved as quickly as possible. However, in a case where the issue of "failure" arises or remains unresolved 12 months after onset, an allowance is in order. The issue of "failure" and if it is justifiable will continue to be developed. If the issue of "failure" arises at the hearing or AC levels, if not fully developed through testimony and/or evidence submitted, and it has been 12 months after onset, a favorable decision will be issued, and the case will be referred for development of failure to follow prescribed treatment.

Continuing Disability -- The issue of "failure" may arise at the time of a continuing disability investigation where (1) subsequent to a prior favorable determination based on information indicating the individual was cooperating with prescribed treatment, the individual failed to follow through on such treatment or (2) treatment has been prescribed since the last determination. Such situations will require the same documentation as that outlined above to determine if "failure" exists and if it is justifiable. Benefits will be continued for 2 months after the month in which a determination of cessation occurs.

Effect of Adverse Determination on Subsequent Decisions

Once a claim has been denied, a closed period of disability established, or benefits terminated on the basis of failure to follow prescribed treatment, the fact that the individual may later undertake to follow such treatment will not be the basis for revising the adverse determination to establish an onset during the period the individual was not following prescribed treatment. For the determination to be revised establishing such an onset, it must be shown, with or without additional evidence, that the determination based on "failure" was incorrect. For example, if at the time of the adverse determination a treating source did not actually prescribe treatment, or the prescribed treatment could not have been expected to restore a capacity for any SGA (for gainful activity, as appropriate) or a justifiable cause for failure to follow prescribed treatment did exist, consideration of revision would be warranted. Where revision is not warranted, and if entitlement is established, the onset date could be that date when the claimant first arranged to follow prescribed treatment. For entitlement to benefits, the impairment must then not only meet the severity requirement but also be expected to last 12 continuous months from the onset date thus established. Also, the insured status and other nondisability requirements must be met. It is very possible that most such claims will be denied for failing to meet one of these requirements (particularly the continuous 12-month requirement, because onset cannot be established before the date the individual arranged to undergo treatment). Accordingly, it is especially important that an explanation be given to the individual before a determination is made regarding failure to follow prescribed treatment, so that he or she will understand all the implications of continued failure to follow treatment.

Blindness: Title XVI

The principle of "failure" is generally applicable in title XVI statutory blindness cases. An individual who would otherwise be found blind, but who fails without justifiable cause to follow treatment which is prescribed by a treating source and which can be expected to restore vision to the extent that he or she would no longer be blind, cannot by virtue of such "failure" be found to be blind for title XVI purposes. As in regular "disability" cases, the issue of failure to follow prescribed treatment in title XVI blindness cases arises only when all of the following conditions exist:

1. The evidence establishes that the individual is blind; and
2. Treatment which is clearly expected to restore vision to the extent that the individual will no longer be blind has been prescribed by a treating source; and
3. The evidence of record discloses that there has been refusal to follow prescribed treatment.

When all of the above conditions are present, a favorable decision should be prepared and payments started pending resolution of the "failure" issue, since duration is not a factor. Development should then be initiated (at the hearing or AC levels, the case will be referred to the effectuating component) to obtain the information required to determine whether "failure" is justifiable. To protect the individual's right to "due process," benefits will not be denied until the claimant or beneficiary is informed that SSA intends to find "failure" and of the effects of such a determination.

In the event that the individual is found to be failing to follow prescribed treatment and such "failure" is not justifiable, blindness will be found to cease effective with the date of the adverse determination, with payments continuing for 2 months thereafter.

Eligibility for payments may be established in some cases based only on evidence furnished by an optometrist. While such evidence may indicate the probable need for treatment, it is not of itself sufficient to establish that treatment has been prescribed that will restore vision (for the purpose of determining "failure"), because an optometrist is not licensed to prescribe such treatment. Further, even though a purchased medical examination obtained from a physician skilled in diseases of the eye would satisfy the requirement of a licensed medical source, such evidence would not satisfy the requirement that the treatment be prescribed by the individual's treatment source. In either instance (i.e., where medical evidence of "failure" is not from the individual's treatment source, or where the only evidence is from an optometrist, regardless of whether or not he or she indicates a possible need for treatment), the cases will be referred to VR.

EFFECTIVE DATE: The PPS is effective with the date of the final regulations which reflect this policy. Those regulations were published in the Federal Register on August 20, 1980 (45 FR 55566).

CROSS-REFERENCES: Program Operations Manual System, sections DI 2207-2208.C.


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