From Social Security Ruling 13-2p, scheduled to be published in the Federal Register tomorrow:
Although the DSM [Diagnostic and Statistical Manual of Mental Disorders] includes a category for nicotine-related disorders, including nicotine dependence, we will not make a determination regarding materiality based on these disorders. ...
When we apply the steps of the sequential evaluation a second time to determine whether the claimant would be disabled if he or she were not using drugs or alcohol, it is our longstanding policy that the claimant continues to have the burden of proving disability throughout the DAA [Drug Abuse and Alcoholism] materiality analysis. There does not have to be evidence from a period of abstinence for the claimant to meet his or her burden of proving disability. ...
[From a footnote] The finding about materiality is an opinion on an issue reserved to the Commissioner under 20 CFR 404.1527(e) and 416.927(e). Therefore, we will not ask a treating source, a CE [Consultative Examination] provider, a medical expert, or any other source for an opinion about whether DAA is material. ...
At the State agency levels of the administrative review process, a State agency medical or psychological consultant (MC/PC) may use his or her knowledge and expertise to project improvement of a physical impairment(s). At the hearing and appeals levels, Administrative Law Judges (ALJs) and the Appeals Council (when the Appeals Council makes a decision) must consider such MC/PC findings as medical opinion evidence and may base their findings about materiality on these opinions. ALJs and the Appeals Council may also base their findings on testimony from medical experts. As we provide in our regulations on considering nonexamining source opinion evidence, ALJs and the Appeals Council will give weight to these opinions to the extent that they are supported and consistent with other relevant evidence in the case record. Medical source knowledge and expertise are factors that may support the finding. ...
Adjudicators should generally not rely on a medical opinion to find that DAA is material if the case record contains credible evidence from an acceptable medical source from a relevant period of abstinence indicating that the impairment(s) would still be disabling in the absence of DAA. ...
Adjudicators must not presume that all claimants with DAA are inherently less credible than other claimants.The big thing going on here is not what this Ruling says but what it doesn't say. Social Security's previous instructions on DAA said that "“When it is not possible to separate the mental restrictions and limitations imposed by DAA and the various other mental disorders shown by the evidence, a finding of ‘not material’ would be appropriate.” This statement is not in the Ruling. In fact, the Ruling says the exact opposite.
This was signed not by Acting Commissioner Colvin but by Michael Astrue on February 12. It was filed with the Office of Federal Register on February 19, after Astrue left office. Was Colvin aware of this? If this were a regulation, I would say it would be invalid without Colvin's signature but a Ruling? Colvin could disavow this at any time but would she? Of course, she could "correct" it by adding the omitted language.
5 comments:
Charles: I'm not sure I agree with you on my first quick read-through. I think the SSR makes the statement you think isn't there in different, more formal words and with some rationale. I think it says pretty clearly that the only way you can find materiality in a case involving a mental disorder is with affirmative evidence establishing that the mental impairment would improve. That evidence does not include opinion evidence about whether the impairment would improve based only on someone's "expertise." The SSR seems to say that there has to be specific evidence in the record demonstrating that the claimant would get better; otherwise, DAA isn't material. To me, that's the same thing as saying that DAA isn't material if SSA "can't tell." In my view, it could even be stronger than the old policy statement. I do note in my first reading that there's nothing in question 7 about how SSA will deal with cases in which there hasn't been a period of abstinence, while there's plenty in the question on physical impairments. But I don't see that as necessarily being about the "can't tell" issue.
From the preface to the new ruling:
“Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all of our components. 20 CFR 402.35(b)(1)”
Since a significant number of ALJs and most of the decision writers at the Appeals Council (an increasingly useless component) have ignored previous SSA guidelines, dressing up DAA in an SSR will result in zero changes. Nothing is binding. The policy wonks in Woodlawn will parade out all manner of new DAA enlightened schemes and grand training ballets, but that will not affect unchecked credibility tomes when they fall on the deaf ears of other “decision” writers. Hubris.
Not sure what this means.
"The finding about materiality is an opinion on an issue reserved to the Commissioner under 20 CFR 404.1527(e) and 416.927(e). Therefore, we will not ask a treating source, a CE [Consultative Examination] provider, a medical expert, or any other source for an opinion about whether DAA is material."
Does this apply to ALJs asking an ME about materiality? Or is it just saying the final determination is with the commissioner? Pretty confusing as is this whole SSR.
Weird that this is Astrue's swan song to control the SSA. There is something fishy in it but it is cleverly masked. Time will tell if ALJs adopt this.
I also disagree that the Ruling does not address what to do when the impairments cannot be separated - it says "If the evidence in the case record does not demonstrate the separate effects of the treatment
for DAA and for the co-occurring mental disorder(s), we will find that DAA is not material"
"Does this apply to ALJs asking an ME about materiality? Or is it just saying the final determination is with the commissioner? Pretty confusing as is this whole SSR.
Weird that this is Astrue's swan song to control the SSA. There is something fishy in it but it is cleverly masked. Time will tell if ALJs adopt this."
Materiality is a legal finding. A medical expert is qualified to testify as to medical issues, i.e., whether the claimant's combined mental impairments with drug and alcohol abuse are of such severity as to meet or equal a Medical Listing, whether the medical records show periods of sobriety or abstinence during which the claimant's impairments and limitations may not have been as severe, whether the impairments are so co-mingled that it is not possible to predict the claimant's functioning without DAA, etc. It is from these medical opinions, among other opinions, that an ALJ is to make a materiality finding.
It's a shame that there is such distrust that anything the agency does is "fishy" or a "cleverly masked" nefarious plot. ALJs are bound by this Ruling, as are all SSA adjudicators. Read it and use it to best represent your claimants and hold the agency to what it says.
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