This wouldn't excuse Eric Conn, if the allegations against him are true, but does this sound familiar?
- Non-physician disability examiner whose salary is paid by Social Security completes a residual functional capacity (RFC) form. The disability examiner knows that if the claim is denied, whether rightly or wrongly that it is unlikely to be reviewed any further but that if it's allowed, it's going to be reviewed at two different levels. If the reviewers disagree with the allowance, the case is returned to the examiner. Too many returns and the examiner's job is at risk.
- Disability examiner gives the RFC form to a physician whose salary is paid by Social Security.
- The physician receives so many completed RFC forms from disability examiners that he or she has no realistic way of actually reviewing all the medical evidence in each of the cases.
- The physician signs the RFC form after a cursory review of the medical evidence or no review.
- Under Social Security Ruling 96-6p, Social Security's Administrative Law Judges (ALJ) are required to consider the RFC forms generated in this manner because they come from "highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims."
What is described above is pretty much the norm. I don't think there's any excuse for what Conn is alleged to have done, but how different is it from what Social Security does regularly? And Social Security demands that the "medical opinions" produced in this way be carefully considered. Does Social Security's Office of Inspector General (OIG) want to investigate? Does anyone in Congress want to hold a hearing?
17 comments:
Although they are overworked, your characterization is inaccurate. DDS physicians have adequate time to review the records. Remember (you always point this out when it aids a point you're making, but curiously didn't mention it here, Charles), files are rather light at the initial and recon levels at DDS.
The deluge of documents doesn't usually begin until you reps come on board, and that is by and large after DDS.
But please, equate a DDS physician doing high volume of case review while being subject to State and Federal gov't review (remember also that DDS physicians I'm pretty sure always write the RFC, the DDS examiner just types it out and puts it into the explanation document) to a private physician making much (all?) of his bread signing one of five different RFC forms for thousands upon thousands of claimants.
Finally, let's not forget the ol' treating source rule--again, something you trot out when it benefits your point, but that is somehow absent here. You are mad about the deference 96-6p gives to DDS docs but don't have anything to say about the asinine treating source rule?
If you can't see a huge difference here, you need help.
some good points by the first commenter......
there is a distinct difference, by regulation - in what an RFC determination is and it is an issue reserved to the Commissioner (and delegated) and medical opinions.
Medical opinions, to be useful and valid to be accepted, should provide an opinion on what how the objective evidence (signs, symptoms, tests/lab findings) affect the person's physical and mental capacity to do work related activities. In order to be useful and persuasive, such opinions should be directly related to the objective findings. This is rarely done in most opinion evidence - especially those "canned" statements or forms produced by many representatives from doctors who have not examined the claimant or only briefly examined the claimant. Those opinions should be dismissed in whole or in part.
The regulations are clear on these distinctions - unfortunately carrying out the regulations does not appear to happen in many cases.
"Asinine treating source rule?" Wouldn't a claimant's own treating doctor be in a much better position to determine an RFC than the "high volume DDS physician" paid by the govt?
The problem with treating sources is that they're paid by the claimant and they need the claimant to get benefits in order to maintain their business.
As far as DDS goes, yes, they get some consideration, but ALJ's don't give them much credibility. Everyone at ODAR knows that they deny tons of people who shouldn't be denied and approach their decisions with the appropriate skepticism.
I think it is highly likely that 9:28 works for a DDS. Even if the poster doesn't, his/her attitude about treating physician statements is the type of attitude that is eventually going to result in a class action against the DDS in my state and possibly in other states. It is pretty clear that even a well reasoned, well supported treating physician statement is summarily disregarded in most states where I have handled cases. This is one of the big reasons why ALJs, who for the most part have a better regard for a TSS, reach a different conclusion.
With respect to Charles' statements about how a DDS physician reviews a file, I think he is right on point for the most part. Here in my neck of the woods, we recently have had a former DDS physician indicate that such was going on his office.
I called it asinine because the rules give CONTROLLING WEIGHT to a treating source absent evidence indicating it should not be given such weight. Controlling weight means, at least according to our wise AC and the federal courts, following verbatim.
It is asinine because most treating sources are not at all familiar with the SSA's disability standards, etc., as was discussed in more detail by the post or two after my original post. So we are going to give controlling weight to a medical professional on an issue that is very vocational, etc. (i.e., not purely medical), in nature? The poster after me noted how opinions are supposed to address functional abilities, not "his pain is disabling/debilitating," etc. that we often see from treating sources.
Just like ALJs are raked over the coals for not articulating SPECIFIC FUNCTIONAL LIMITATIONS in their RFCs (particularly in 96-8p type cases), medical source opinions are similarly lacking and deficient when lacking specific functional descriptions.
So yes, the regs giving controlling weight to treating sources as a default is, in my view, asinine.
And I do not work for DDS.
12:34, you need to re-read ssr 96-2p. If your view of things was correct, every rep and judge would have an award rate like Eric Conn/ALJ Daugherty.
The TSO is asinine because it is illogical. Controlling weight is only afforded when the TSO is not inconsistent w/other evidence in the file. The fact that a case reaches a hearing means there is other evidence in the file that is inconsistent w/the TSO.
Unless a person is near death, there will always be something inconsistent in the file. My frustration as an attorney is where the DDS medical examiner is consistently given more weight than the treating physician. If there's two battling physician opinions, the treating physician should prevail, assuming there are reasonable justifications for this opinion in the file. Oftentimes, I see it called the other way around.
Most treating physicians are unethical and will say anything/sign anything in return for a fee and the claimant's ongoing business.
The "treating physician" rule is a misnomer; it should be styled the "treating liar" rule.
A lot of what I am reading is based on what appears to be an implicit belief that the claimant's subjective reports are 100% accurate and should be given great weight.
For example, all too often treating source treatment notes don't document all that much in the way of objective findings or observations--their MSSs often contain allegations that are not found anywhere outside the claimant's reports. Thus, if the claimant's reports are not given great weight, suddenly the MSS is not so accurate a portrayal of the claimant's functioning and is therefore not entitled to great weight (since it is based largely on these reports).
If I have a work history, inconsistent statements, noncompliance, etc. etc. in the record justifying giving the claimant's statements little weight, then anything based on his/her subjective, unverified reports will necessarily lose weight. Get it?
Funny a lot of what I am reading is people making baseless assumptions about the medical field and their motives.
Charles--your continuing semi defense of Conn is becoming comical...In your world would every applicant receive benefits???
The so-called "treating physician rule" is a despicable fraud upon the taxpayer. The TP obviously is biased in favor of the claimant. Most TPs, it is well received, will say and/or sign just about anything for a fee and the claimant's ongoing custom and trade.
Most treating physicians, it bears repeating, are unethical and will collude with counsel to defraud the SSA. The rule is a misnomer; it should be restyled the "treating liar rule."
More meaningless baseless assumptions.
Anon 8:05 has obviously never represented an individual in an SSD claim. From my experience, most treating physicians will not easily complete an FCE form. I come across several reasons: the doc is too busy seeing too many patients in a day at an understaffed Medicaid-clinic (where most of my clients, if they're even able to see a doc, are forced to treat); doc sees it as a sign of personal failure if their patient is not "healed" from their treatment (so many surgeons won't consider disabling their patients); doc dislikes lawyers/litigation ("that's not my job as a doctor"). So when I'm able to obtain a completed FCE form with a few sentences of explanation from a treating physician, that doctor is far from a liar and his/her opinion should be given greater weight.
Initial and reconsideration level claims @ SSD have checks n balances for allowances and denials. Decision are mostly based on objective evidence. Reports of limitations by claimants are very subjective and biased. This system is s abused by lawyers, citizens, and ALJs. Not all, but some. This is the reason for people being denied when they may should have been allowed. That is the reason for the overworked SSD physicians and non physician examiners. They hear bullshit, and OBVIOUS Bullshit, 80% of the time. Remember a lot of people applying are desperate and without income, desperate people do desperate things. Most have exacerbated their unemployment benefits and move on to the next government assistance program. You can contribute the SSD program dilemma to the ignorance of low/middle class people that have lost jobs due to economic down turn, outsourcing, and the decline of mom and pop stores. Not to mention the majority of these "impairments" can be prevented by PREVENTATIVE CARE! Which is caused by lack of medical access..... "MEN LIE, WOMEN LIE, NUMBERS DON'T!" In this case "numbers" refers to objective medical evidence. Thank you republicans, tea party members for ignoring "WE THE PEOPLE" and only worrying about your own pocket and making it fatter than it already is at the expense of your fellow Americans. AMERICA IS A BUSINESS. UNITED STATES OF AMERICA IS A VERY MISLEADING NAME FOR OUR COUNTRY. IT SHOULD BE "THE DIVIDED STATES OF EMBARRASSMENT". And for all you out there that noticed, yes I quoted Sean Carter and Marshall Mather's in this response, mostly because they've been at the bottom and are now at the top.
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