Mar 4, 2013

ACUS Draft Report

     From a draft report of the Administrative Conference of the United States (ACUS) (emphasis added):
In order to promote greater decisional consistency and streamline the adjudication process at the ALJ [Administrative Law Judge] hearing stage, SSA [Social Security Administration] should consider: 
(a) requiring claimants or their representatives to submit pre-hearing briefs in a standardized format that, among other things , summarizes the medical evidence and justification for claimants’ eligibility for benefits; 
(b) expanding the use of video hearings, in a manner consistent with sound technological practices, that balances improved efficiency (i.e., timeliness and costs of adjudication) and fairness of the proceedings and participants’ satisfaction with them. SSA may wish to offer incentives to claimants who opt for video hearings, such as faster scheduling of hearings (as compared to in - person hearings) or more convenient hearing locations; and 
(c) exploring the assignment of decisionwriters and case technicians to specific ALJs in a hearing office (with Hearing Office Directors continuing to supervise such support staff ), while maintaining flexibility for changes in technological and operational needs....
Expanding “Own Motion” Review. In order to focus attention on the decisions that are most likely to warrant review, thereby enhancing both efficiency and programmatic consistency, SSA should expand the Appeals Council’s use of own motion review in a manner consistent with ALJ decisional independence. If necessary to achieve this goal, SSA should consider revising its existing regulations through notice - and - comment rulemaking. The Appeals Council should use published neutral and objective criteria, including focused statistical sampling , to identify those ALJs whose decision rates for allowances or denials place them significantly outside the rates of the majority of their peers. SSA must also ensure that selection of review criteria is do ne without referenc ing, or targeting, particular ALJs or other decisionmakers, and that inclusion of cases in such review does not serve as the basis for evaluation or discipline. ...
SSA should consider revising its regulations to eliminate the controlling weight aspect of the treating source rule. Instead, SSA should consider giving ALJs greater discretion and flexibility when determining the appropriate weight to afford opinions from treating sources, in line with the factors enumerated in the current regulatory scheme for evaluation of opinions from medical professionals who are not deemed “treating sources.”
      I wonder if the ACUS Chair will be testifying at the House Social Security Subcommittee hearing this week.


Anonymous said...

ACUS wants require all claimants (even the unrepresented, mentally ill, illiterate, etc.) to submit pre-hearing briefs summarizing all the evidence and submitting legal justifications for benefits? ROFL! And I suppose any argument not in the brief would be waived? Imagine the soaring error rate as people who don't know the law and perhaps cannot even communicate effectively submit these "briefs."

ACUS' reasoning for why so many Federal Courts remand based on the treating physician rule is also flawed. I have reviewed many ALJ decisions, and unfortunately I would call it rare that an unfavorable decision properly articulates the required analysis for assigning weight to medical opinion evidence (20 CFR 416.927 and 404.1527). Maybe 1 in 20 of what crosses my desk. Federal Courts (and sometimes the AC) legitimately catch these errors and send them back to be fixed. Changing the controlling weight rule, as recommended by ACUS, will do virtually zero to fix the main problem. Reading the report gave me the impression that the authors, at least for those two issues, lacked practical experience in the area of SSA adjudication to the extent that they missed the main issues involved. One hopes that ACUS will correct these issues before issuing final recommendations.

Anonymous said...

Perhaps we should remember that the burden of proof lies with the claimant for steps 1-4 of the sequential process? If the claimants can't properly represent themselves, they should hire representatives. And trust me, there are plenty out there that will take almost any case...

Anonymous said...

Mandatory prehearing brief: as I work for a rep, not that worried, as I essentially do one in house on each case. Will lead to small increase in workload.

Incentives for video hearing already (supposedly) exist in the form of quicker hearing dates.

Assigning Decision Writers to specific ALJ's...have to think about this one. Feels wrong.

AC's Own Motion should include denials as well.

Sending notice of remands (and the issues) to ALJ's and Decision Writers no longer assigned to the case seems like a good training type idea, raises privacy concerns.

Add NPs, PAs, and LCSWs as treating souces. I like it, but, all things being equal, Dr. should trump NP's, etc.

Elimiate treating source rule: pretty terrible idea. From what I see, it is already ridden rough shod over all the time. District Court can sometimes save from treating source rule error, but here in 4th tends to be pretty deferintial to ALJ already.


Anonymous said...

as a decision writer, we already get the information about cases that are appealed to the AC. We can see the entire file, including any information submitted after the hearing decision and the AC order.

Assigning writers to ALJ's is basically how the ALL courts work...they're called clerks. Don't see anything wrong with it. Pluses and minuses to both systems.

RE: controlling opinion. I have written over 2,000 decisions...haven't used it once. Haven't ever thought it should have been used and can't foresee a realistic situation to give controlling weight to any opinion. There is ALWAYS some contradictory evidence. If there wasn't, it would be FF at the DDS level.

Anonymous said...

I love that the rule explicitly states that the treating doc gives a "unique perspective" that can not be gleaned from objective evidence alone, or by a one time, non-examining physician. This effort to water down this rule, # 1, may not be effective as stated above, but, #2, gets us closer to computerized electronic decisions, without the need for independent ALJs or any extra weight given to one factor--treating docs- which would naturally require a person. This is the agenda of right wing think tanks and those that finance them to reduce those on the SSDI and SSI programs and reduce the involvement of attorneys. In my opinion, these folks want to not only increase input on who becomes an ALJ, but they also want to control an ALJ's independence.

Anonymous said...

Anon 3:11,

I figured that to be the case (no controlling weight cases in over 2,000 written ALJ decisions). Reading the ACUS report, one gets the false impression of a flood of controlling weight decisions overwhelming the AC and the Federal Courts. If I had to guess, most of the ones getting reversed involve important medical opinions that were either overlooked, or not properly evaluated which are real problems which the ACUS draft report studiously ignores. Big credibility blow to ACUS if they don't fix the reccomendation in the final draft, and if they don't I hope SSA will exercise better quality control in selecting people to come up with such "reccomendations" in the future.

Anonymous said...

You guys are missing it--cases aren't remanded because treating source opinions were improperly GIVEN controlling weight, but because the lazy writer didn't write enough to justify NOT GIVING the treating source controlling weight.

I laugh when I read briefs or listen to hearing recordings of reps (usually of the non-attorney variety) arguing the treating source rule like it's some dictate from God that treating sources should always be given controlling weight. The regs make it very clear that, just like every other opinion, you assign weight based upon consistency with the other evidence of record (yes it is more detailed than this, but I think this is a fair summation).

I kind of see the treating source rule as a meaningless rule to make a treating relationship seem important--how important is this deferential treatment when the exact same factors used to discredit other opinions can just as easily be used to justify giving a treater's opinion little weight?

Anonymous said...

"Lazy writer"? How about a corresponding lazy or sloppy ALJ hearing examiner who, after not bothering to look at the record, doesn't know that a treating source opinion exists therein, and doesn't bother to proofread his or her own before signing the decision. The ALJs do little to no writing. The least they can do is read the record, clearly articulate their findings, and proofread/edit for legal sufficiency the decisions that they sign. No excuses or shifting blame to the writers.

Layne Adams said...
This comment has been removed by a blog administrator.
Anonymous said...

Anon 5:06 and 8:38,

Both of you make good points. I virtually never argue controlling weight, which makes the point that the author of the ACUS report badly mis-identified the problem. Good reps argue the regulatory factors for giving weight to medical opinions, which are common sense, such as the qualifications of medical source, history of longitudinal treatment, consistency with the record, etc. If an ALJ wants to deny a legit case, the unfavorable decision rationale will typically cherry-pick cite isolated or irrelevant negative medical findings in support, and ignore or not explain stronger evidence supporting a favorable decision. It's perfectly legitimate for appellate courts to look carefully at those and remand if the error was harmful (could have resulted in a changed outcome). Cutting down on those remands would involve identifying the ALJ's who chronically misapply those rules and get remanded, and taking some form of corrective action. If the ACUS people had done their homework, they would have reached or at least considered that issue.

Anonymous said...

@ 3:11 In 2,000 written opinions, you've never used the controlling weight rule? You say there is Always some contradictory evidence. I would agree. There is obviously an unfavorable RFC evaluation by DDS. The test, however, isn't if there is a mere scintilla of connradictory evidence. If you fail to accord controling weight because of a scintilla of evidence, I submit you are failing to follow the rules.


Anonymous said...


I'm not trying to be snarky (I don't want this post deleted), but even with the most poorly written ALJ instructions, a decision writer with basic common sense should be able to handle assigning weights to opinions. You don't have to be spoonfed to figure out how the judge wants (or, in the case of bad judges who don't even think about it--needs) weight assigned. I'll give you my amazing secret:

Step One: identify the RFC.
Step Two: give greater weight to opinions that more closely resemble the RFC.

Anonymous said...

I see a major problem in eliminating the treating physician rule. Sure, the treating doc may sometimes give an opinion to "help" their patient. However, the alternative would be to place more reliance on examining and consultative examiners and their exams and conclusions (CE's). (Don't even get me started on DDS docs.)

A great many of CE's that I see are extremely deficient rising to the level of outright fraud.

The only way I see improvement is to recruit better doctors and psychologists to work for the Agency. This involves paying more, and I don't see that happening in this climate.

I do honestly believe that the treating doc gives a "unique perspective" that can not be gleaned from objective evidence alone, or by a one time, non-examining physician." Some physicians are so familiar with their patients, that sometimes they don't document everything they observe at every visit. This causes problems with us reps.

Anonymous said...

Well said 1:16. Really dislike doctors records that have a default "denies" symptoms list and these don't get changed on visits. I've seen the narrative portion of records record patient suicidal, weeping, etc., but "denies" depression. This then shows up in the Decision as an inconsistency.


Anonymous said...

@ anonymous 11:16 a.m. on 3/5/2013:
If I understand you correctly, then your method will often result in a decision that is not supported by substantial evidence.

The problem is that, apparently, you do not check the medical evidence of record (MER) to see if it correlates to the opinions you are adopting.

In many decisions I have reviewed, the ALJ's step 2, step 3 or RFC findings are based on a medical opinion that is undermined by evidence that was not available to that doctor/ psych (but was available to the decision writer before he or she wrote the decision). It stands out when the decision writer just glossed over this evidence or did not bother to consider it at all. If this evidence undermines the ALJ’s findings, then corrective action is often necessary.

Even if you personally do review all the MER and just forgot to mention it in your post, clearly many decision writers do not review all the MER. It’s a shame b/c it wastes everybody’s time, especially the claimant’s time if he or she is seriously ill.