Aug 26, 2016

Proposed New Regs On Medical Evidence Coming

    The Office of Management and Budget (OMB) has cleared a set of proposed new regulations on medical evidence considered in Social Security disability claims. Below is the agency's brief description of the proposal. We won't know exactly what's in the proposal until it's published in the Federal Register, which should happen soon. Remember it's only a proposal. A new administration can change it significantly or can it.
We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to evidence, explaining what is and is not evidence, revising our list of acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising who can be a medical consultant (MC) and psychological consultant (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These proposed revisions conform with the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive primary medical care, simplify and reorganize our rules to make them easier to understand and apply, allow us to continue to make accurate and consistent decisions, and emphasize the need for objective medical evidence in disability and blindness claims.

30 comments:

Anonymous said...

It would be great to not allow ME's to testify at hearings outside of their area of specialty. I just had a Hematologist put a guy with a quadruple bypass and a hip replacement at medium.

Anonymous said...

I have literally never seen an ME.

How did an ME testify to medium exertion?

Atty: Would it be medically advisable for a claimant who has undergone a quadruple bypass to lift 25 pounds for 6 hours of a workday.

ME: Yes, blood can withstand great pressures.

Atty: Would it be medically advisable for a claimant with a hip replacement certified to be capable of sustaining limited weight bearing activity, found to be 10 pounds at most by her treating physicians?

ME: Yes, blood is irrelevant to hips.

Anonymous said...

We routinely have a pathologist testify in hearings. I once asked him, after he gave incredible testimony:

Atty: Have you ever examined a living patient?

ME: No.

Anonymous said...

The short version of the changes would be an expansion of what is an acceptable medical source to include physician assistants and nurse practitioners as well as the complete elimination of the treating physician rule

Anonymous said...

@3:09

I would be shocked if physician assistants and nurse practitioners were actually found to be acceptable medical sources. This would not be a welcome change.

In regard to the treating physician rule being eliminated, the courts would disagree as they basically forced SSA to acknowledge a treatment relationship obviously directs greater weight be afforded to the treater's opinion. The elimination of the distinction from SSA's regulations would result in hundreds of remands per year.

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir., 1983) ("We note also that the Fifth Circuit has joined the Second and Sixth Circuits in giving greater weight to the opinions of treating physicians...The Fifth Circuit gave greater weight to the testimony of the treating physician because of the purpose for which he or she was employed: "Our reliance on the opinion of the treating physician is based not only on the fact that he is employed to cure but also on his greater opportunity to observe and know the patient as an individual.")

Anonymous said...

Sorry, WOULD be a welcome change. That was an unfortunate typo.

Anonymous said...

It's not as if judges feel the need to adhere to the treating physician rule anyway, in my experience.

Anonymous said...

@6:27

6:22/6:33 here. Agreed, the recent trend appears to be assigning "significant," "little," "great," and "no" weight with no explanation and then generate an RFC finding untethered to any particular medical source. Then SSA just defends the ALJ's RFC finding in court saying the ALJ has to look at the evidence of record as a whole and base the RFC finding on all the evidence.

Effectively blocking their actual reasoning from judicial review.

Amishboy51 said...

I've never understood why a treating source (or any physician, certainly including ME's) should be considered to have expertise with regard to RFC (as opposed to diagnosis or prognosis of impairments).

Anonymous said...

@Amishboy51. Explain why an ALJ with no medical or psychological training is better equipped to do it.

Dan Smith said...

@7:40

That's something I always struggle to get across to doctors who are reluctant to produce a MSS because they feel they can't estimate an RFC. It's better that a doctor make educated estimates than an ALJ make less-educated estimates.

Amishboy51 said...

@7:40 and Dan Smith; my point is that an ALJ who's reviewed an individual's entire medical file and heard about her ADLs is arguably as "educated" as a treating (or non-examining DDS) physician, with no specialized training in disability assessment that I'm aware exists, to make such a judgment.

Tim said...

Amishboy51 Your assertion assumes the medical records are well developed. However, most doctors write their notes for their use and not SSA's. Doctors often tell you one thing and write something different in their notes! You see a hand doctor for arthrits in your hands (especially thumbs), he gives you a cortisone shot for each thumb. On your next visit, he asks how well the shots worked? You say, "They didn't help, at all!" You ask for records, which say, "Gave Cortisone shot for each thumb. Responding well to treatment." So, you go back to get the record straight. He says, "There's nothing I can do for you!" Records say, "Patient has no further need for treatment." You try to reschedule. He won't see you. You try other specialists. They won't see you. They say, "We can't help you!"

For those who want to make it adversarial... let us have subpoena power and make every doctor testify to what was said, not just what they write in their records! As for other medical sources, I am sure my chiropractor is more familiar with my back than any of my doctors are!

Anonymous said...

Medical records often use boilerplate language (like many ALJ decisions). Medical records (like many ALJ decisions) often use language that is internally contradictory.

Amishboy51 said...

Tim, I've very rarely heard a claimant assert that the doctors tell her something different from what they wrote in their records.

Amishboy51 said...

At 4:16, I'm not clear what your point is.

Tim said...

Amishboy51 What 4:16 is alluding to is cutting and pasting from previous appointments and then adding or subtracting some information. One thing I can assure you, most doctors don't put what you tell them into the records. If you tell them "I have tingling sensations in my hands, feet and face; cramping in my calves, hamstrings and quads and increased hip and back pain when I stand for any length of time or when walking; I wake up dizzy and groggy 5 or more days a week, often lasting for hours..." and 5-7 other things on a given appointment. The records would be nearly identical to the previous statements, with the added comment, "I don't understand why he has all this pollyarthritic pain. He also complains of tingling sensations and dizzyness." Naturally, the doctor didn't bother to tell me about her confusion (I only found out when I read the records) and when I was diagnosed with Fibromyalgia in addition to Ankylosing Spondylitis and oesteoarthrits by another specialist, she seemed sceptical. When I asked her why, she said, "Well, I don't believe in Fibromyalgia!"

I have a long history with doctors and one trait seems to be a common occurance: they don't know half of what they think they know! I have had a neurologist tell me you can't have three types of epileptic seizures (I had three or more of grand mal, petit mal, and psychomotor seizures from ages 11 to 33). I went to 6-7 doctors over 16 years for back pain before I was diagnosed (by an eye doctor!). I have had a doctor who was unwilling to change one word in his records. It didn't matter if what was in the records was right, it was what his assistant wrote and he "wasn't going to change it!"

Tim said...

By the way, not that it means anything... I calculated five (I could have added more) of my conditions and the odds of one person getting those five was one in 260 trillion, or nearly one million times less likely than winning the powerball! As for the 3 types of epileptic seizures, the chief neurologist at Indiana's Children's Hospital told me he had treated over 10,000 epileptics, more often than not the harder ones to treat. He could recall one other person that had had at least 2 of the same three seizures that I had had!

Anonymous said...

Tim,

I don't mean to minimize your conditions, but please understand that diagnosing impairments is not an exact science, and it is heavily influenced by insurance billing considerations. Also, some medical providers are lazier than others, to put it mildly.

You could see several different specialists and come away with diagnoses of DDD, lumbalgia, polyarthritis, CFS, FM, and myofascial pain syndrome. It doesn't mean you have all those conditions. It just means that's where the darts landed when it was time to give your symptoms a label that corresponds with a billing code.

Tim said...

8:40 PM I've been listed by at least 3 of those, but just calculated the fibromyalgia at a conservative 1:60, plus epilepsy, ankylosing spondylitis, hemifacial spasms & meralgia paresthetica. I didn't even include oestearthritis (hands, shoulders, knees, feet), sleep apnea, irritable bowel syndrome or dry eyes (causes frequent migraines). I am still waiting for a hearing. My point is, however, is that doctors have a book knowledge of these conditions and don't always understand or appreciate what it is really like to live with some of these conditions. They tend to be cautious and understate how limiting certain conditions can be. I find this to be particularly true of younger doctors.

Anonymous said...

you should play powerball

Anonymous said...

Don't be surprised to see SSA try to water down the treating physician opinion rule. They think that docs make things up; their solution is to let the DDS docs and ALJs make things up.

Margaret Kibbee said...

I know that doctors tell the patient one thing and don't write it in the records. However, the treating physician rule is still the best rule we have. It gives the claimant a chance to choose a doctor that might keep decent records. I have done hearings since 1970 and have only had me's at four hearings and then it was ordered on remand. Two of those cases it helped and two it guaranteed that I was going to lose.
Doctors have told me that the only way to get an accurate rfc is to have a physical therapist do an evaluation.
An ALJ told me that she had problems with the records she usually got from nurse practitioners. Even if the rule changes, the ALJ's probably won't. When you can get a treating physician to do an rfc, it really helps.

Anonymous said...

I have 2 comments:
(1) Amishboy51 @5:13: You have rarely heard a claimant tell you that the physician told them something different than what the doctor put in the records? Was that in both cases which you handled? This disparity is especially common among orthopedic surgeons. I can instantly name 3 in our locale for whom this is a regular practice, especially in workers comp cases where the insurance company picks up the bill and the doc wants to get more future referrals for examinations from the insurance company. He may feel some obligation to the injured worker, but that is only one fee--the insurance company can be the source of many fees.

(2) Physicians assistants (PA)and nurse practitioners (FNP) are "treatment extenders" who work under the purview of a supervising physician. In their training they are taught to document, document, document to CYA. I find that their written records are far more accurate as to observations than those of M.D.'s.

Anonymous said...

I am interested in the phrase "explaining what is and is not evidence". I hope this means they will give some leeway to reps to use judgment in what records to submit. So many reps oversubmit due to fear. For example, ob/gyn records are not needed if the claimant is disabled due to the effects of diabetes. And 500 pages of nursing notes and lab reports are not needed for a surgery - just the operative report and discharge notes please.

Anonymous said...

@3:19 I wouldn't say it is fear. ALJs would jump down your throat if you tried to argue that you didn't submit OB/GYN medrecs because you didn't believe it relevant to a claimant's disability claim because it was your opinion that the claim is limited to diabetes. That is not your call, and even if it were, why would you limit a claimant's claim to a single medical impairment by choice?

Tim said...

3:19 PM I was under the impression that SSA wanted everything, out of fear that people wouldn't submit information that SSA could use to deny! As for doctors, even the sympathetic, willing to help doctors take notes for them and not SSA. Their diagnosis is often enough in their eyes because they don't understand that SSA cares only about how it limits, which is usually not in the notes. Naturally, this leaves the record open for "interpretation." I am curious, however, how nobody seems to question an ALS diagnosis like they do Fibromyalgia. Neither has a test to confirm it (other than genetic tests for 10% of ALS) and part of the diagnosis of each is the exclusion of other conditions with similar symptoms. Ask anyone with fibro if it's all in their head, I'm sure they'll say no. Well, except for smart (alec) who says all pain is in the head...

Anonymous said...

@ 3:19 PM. I hope you have another area of practice because if SSA catches wind that you are routinely not advising of or submitting the ob/gyn recs and redacting the nursing notes from hospital stays, you may lose your ability to practice before SSA.

We just went through all of the changes to the regs about inform or submit and SSA took away any ability for reps or claimants to determine what relates or is relevant to the claim.

Lord knows those OB/Gyn records will likely contain repetitive enteries of normal gait/station that an ALJ can use to discredit the orthopedist's report and will say that the claimant had a normal affect that the ALJ will cite to in order to show that the claimant's schizophrenia is non-severe.

Anonymous said...

Health care providers write progress notes for their own purposes of diagnosis and treatment of a patient and not to document the type and degree of functional limitation (perhaps excepting only physiatrists and physical therapists). Anyone who doesn't understand that, and what it means for what is put in and left out of such records, is laboring under a huge misconception that will frequently cause error when evaluating claims.

Anonymous said...

You can always subpoena the doctor yourself and pay the witness fee. The problem is that the claimant's have various diagnoses and impairments. Due to specialization. most doctors don't know what else is wrong with their patients or what medications they are taking. One says bed rest and another says exercise and walking are recommended. I know a Judge that is a Doctor also. Oh and he is a high payer as he says most impairments are progressive and degenerative in nature. He often asks for amended onset dates for this very reason.