Dec 15, 2016

Evaluation Of Medical Evidence Regulations Sent To OMB

     The Social Security Administration has sent proposed final rules on the evaluation of medical evidence to the Office of Management and Budget (OMB) for approval. To come into effect before the change of administrations, the regulations would have to be approved by OMB and published in the Federal Register by December 20.
     Here's what I picked out of the proposed regulations when they appeared in the Federal Register on September 9:
  • We propose to revise our rules in 20 CFR 404.1504 and 416.904 to state that we will not provide any analysis in our determinations and decisions about how we consider decisions made by other governmental agencies or nongovernmental entities that an individual is disabled, blind, or unemployable in any claim for disability or blindness under titles II and XVI of the Act , and that we are not bound by those decisions. Although we would categorize decisions made by other governmental agencies or nongovernmental entities within the other medical evidence category if made by a medical source or a statement if made by a nonmedical source, we propose to state in 20 CFR 404.1520b and 416.920b that these decisions are inherently neither valuable nor persuasive to our disability and blindness determinations. ...
  • [W]e propose to state in 20 CFR 404.1520b(c)(2) and 416.920b(c)( 2 ) that we will not provide any analysis about how we considered disability examiner findings from a prior level of adjudication ...
  • Consistent with our goals to better define and organize our evidence regulations to produce more accurate and consistent determinations and decisions, we propose to define a statement on an issue reserved to the Commissioner as a statement that would direct the determination or decision of disability. ... Although a statement on an issue reserved to the Commissioner would be categorized within other medical evidence if made by a medical source or a statement if made by a nonmedical source, we would not provide any analysis about how we considered such statements at all in our determinations and decisions . ...
  • To help adjudicators, representatives, and courts identify statements on issues reserved to the Commissioner, we propose to include the following in 20 CFR 404.1520b(c)(3) and 416.920b(c)(3) :
  • statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;  
  • statements about whether or not an individual’s impairment(s) meets the duration requirement for disability; statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments; 
  • in title XVI child claims, statements about whether or not an individual’s impairment(s) functionally equals the Listings; 
  • in adult claims, statements about what an individual’s RFC is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 in stead of descriptions about his or her functional abilities and limitations ; 
  • in adult claims, statements about whether or not a n individual’s RFC prevents him or her from doing past relevant work; 
  • in adult claims, statements that an individual does or does not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and  statements about whether or not a n individual's disability continues or ends when we conduct a continuing disability review (CDR) . ...
  • In order to assist representatives and our adjudicators in interpreting our rules, we propose to revise our rules to state affirmatively our current policy that we will not use a diagnosis, medical opinion, or an individual's statement of symptoms to establish the existence of an impairment(s). We would clarify our rules to state that a physical or mental impairment must be established by objective medical evidence from an AMS. We would continue to follow our current policy if we have objective medical evidence from an AMS that a claimant has a severe impairment(s) at step 2, we will consider all evidence to determine the severity of the impairment(s) and all other findings in the sequential evaluation process. ...
  • [W]e propose several revisions to how we consider medical opinions and prior administrative medical findings. First, we would no longer give a specific weight to medical opinions and prior administrative medical findings; this includes giving controlling weight to medical opinions from treating sources. Instead, we would consider the persuasiveness of medical opinions and prior administrative medical findings using the factors described below. Second, we propose to consider supportability and consistency as the most important factors. Finally, we propose to reorganize the factors to: (1) list the supportability and consistency factors first, (2) include a "relationship with the claimant" factor that combines the content of the current examining relationship and treatment relationship factors, (3) list individually the three different factors currently combined as other factors, and (4) restate the factors using consistent sentence structure. ... 

11 comments:

Anonymous said...

Charles, you keep saying these rules have to be published before Dec. 20, but I have no idea what happens if they miss this deadline. Does it delay them a few months? Does SSA have to start over? Thanks!

Anonymous said...

So the last paragraph does eliminate giving controlling weight to the treating physician. Of all the proposed and new regulations flying around right now, I think this is the most damaging to claimants. This will give the low-paying ALJs an even more free pass to deny claims, no matter the opinions of the treating medical experts who know the claimant better. What are the chances this all gets finalized by 12/20? Seems like an awfully small window to get this done, I hope.

Anonymous said...

I agree totally with @9:26. I can foresee low paying ALJ's disregard favorable Medical Source Statements or opinions with a substantial longitudinal treating history to the claimant and give controlling weight to CE's who have only examined the claimant for 15 minutes and render damaging wholly inconsistent opinions.

I suspect with this approach a low paying ALJ will only need to state that does not give controlling weight to the treating physician opinions with a cursory statement along the lines of "I find it not supported or consistent with the record as a whole." I suspect that even in the face of insurmountable evidence to the contrary this would give a low paying ALJ a license to render these decisions as it allows ALJ's, even more, subjectivity in their opinions.

These new regulations seem to do the opposite of what they are intended to in that the decisions will be less predictable or consistent unless you look at the stats or bias of the ALJ rendering the decision.

I am dismayed at the current leadership in the Administration. But I am even more dismayed at the lack of aggressiveness and acquiescence of the industry organizations such as NADR, NOSSCR, etc that have lobbying groups and close relationships within the Administration.

I would like to hear others thoughts on not just these new rules but also on what if anything should or can still be done?

Anonymous said...

Well said, 10:55. Call my cynical, but I think these rules will meet their intended purpose, i.e., decrease the amount of awards. I think we're still seeing the Conn backlash which appears to have no end in sight. NOSSCR, for what it's worth, published their written response to this and the other regulations in this month's newsletter. They made valid points, which seem to be falling on deaf ears.

Anonymous said...

Nosscr did draft a well-written response. However, lobbying and policy-making/influence are more than just drafting written responses. That is the bare minimum.

Anonymous said...

NOSSCR and NADR no longer hold any sway with SSA or have enough money in the bank to do any lobbying. They have become toothless tigers.

Anonymous said...

To those lamenting the death of the "controlling weight" rule -- do you actually think this is a bad thing for the administration of disability claims, or are you only concerned about how it affects overall pay rates? It seems that reps often cite the treating physician rule as a justification for accepting opinions that a client is disabled even when there are no notes or findings to support them. They argue that the doctor knows the client the best, so SSA should take the statements at face value. Or, this doctor treated the patient for years, so "obviously she was observing more than she wrote down."

If the goal is to get an accurate assessment of a person's functioning, why should SSA look first at who the author is, rather than what he/she has to say? Just as reps like to argue that DDS doctors and CEs are predisposed to denying claims, treating doctors having absolutely nothing to lose by arbitrarily checking boxes indicating that a patient will need unscheduled breaks or will miss four days of work per month. It never made sense to set up a hierarchy based on who's seen the patient the most, because the "longitudinal" insight that supposedly makes those doctors special is often not reflected anywhere in their opinions. In some cases, they rarely even seen the patient, and they just defer to whatever was written by a staffer in their clinics.

The current regs probably wouldn't be a problem if reps didn't play it fast and loose with the section that requires treating source opinions to be "well supported" and "not inconsistent" with other substantial evidence. They tend to argue that whatever the treating source says is gospel unless SSA can point to overwhelming evidence that it's not true. The regs were never meant to shift the burden of proof like that, but that's how reps and some courts have interpreted them. A bad disability opinion is a bad disability opinion, whether the author has seen the patient once or a hundred times.

Anonymous said...

There's a pretty big difference, 8:22. Treating physicians have to be much more careful than agency non-examiners and CE's. That's because they owe a legal duty to the claimant and are liable for malpractice if they screw up and give poor advice that results in their injury. Not so for agency non-examiners and CE's. In other words, if a treating doc negligently says a person with a bad back can lift 50 lbs. and they re-injure it as a result, the treating doc is liable. If an agency non-examiner, CE, or SSA testifying medical expert does the same thing, no liability because no treating relationship and no duty owed. If they were potentially liable, I predict you'd hear much more careful and accurate testimony from them.

Anonymous said...

A "bad ALJ" (i.e., low paying) will deny a case regardless of the well supported opinions of disabling restrictions by the treating physicians. However, for us, this is one of the few instances where we can convince the Appeals Council to remand the case. If the ALJ ignores, or does not properly explain why he/she is not adopting the restrictions of the treating physician, the AC will often issue a remand order. If the treating physician rule is eliminated, the AC will become even of a rubber-stamp-the-ALJ-denial body then it already is now.

Anonymous said...

why dose it take the ffod stamp office only 1 to 3 days to give $200 in food stamps.....but the ssi office take 1 to 3 years to give just $600 more....maby some poeple need to shoot up the ssi office.

Apu Mridha said...

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Apu

Medical Claims Management