This is Social Security's description of a Notice of Proposed Rule-Making (NPRM) that the agency has sent to the Office of Management and Budget (OMB):
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.OMB has to approve the NPRM before it is published in the Federal Register. The public can then comment upon it. The agency must "consider" the comments but the "consideration" is generally limited to giving a brief explanation of why they don't agree with the comment unless the comment has to do with something as minor as punctuation. After that process is finished, the final regulation goes back to OMB and then into the Federal Register again after which it goes into effect. However, we'll have a new President and Commissioner before this happens.
This will be big. I'm predicting the proposals will include an expansion of the list of approved "treating sources" to reflect the reality that many people are treated by non-physicians now. Good idea, if that is the case.
ReplyDeleteIf I had to bet I would wager that SSA will be revising the treating physician rules with the specific goal of making it harder for claimants to win appeals and USDC cases. One of the common errors cited in court remands is failure to properly weigh treating source medical opinion evidence. I'd expect something in the proposal to make it easier for ALJs to discount treating source opinion evidence in favor of opinions from agency non-examining sources and agency one-time consultative examiners who often have never even reviewed the record. OGC is tired of losing these cases and wants to tilt the field more against the claimants by changing the rules. I'd be pleased if I were wrong about that, but we will see.
The treating source rule was poorly constructed in the first place as far as the agency is concerned. So you have this rule that requires an SSA decision maker to give controlling weight (i.e., adopt the opinions) to the opinions from a treating (acceptable medical) source. But then there's the caveat that, well, (I'm summarizing) not if the other evidence of record doesn't agree with it.
ReplyDeleteSo what kind of rule is that? An absolute dictate that is immediately undercut by a super general, easy to apply exception.
Unless somebody ventures to rigorously set the weight of the various factors we consider (treated? length of treatment? specialist? consistency with other evidence? etc. etc.) relative to one another, at the end of the day all this weighing analysis--its various special rules, etc.--boils down to "opinions that are more consistent with all other evidence of record get more weight." So maybe that should just be the rule?
I've yet to find a doctor in my area willing to give an opinion other than what they write in their records. One even stated when asked why, "because they (SSA) just ignore us, anyway!"
ReplyDelete@ Tim
ReplyDeleteI all too often see physicians unwilling (fearful)to offer an opinion in a case. What these physicians fail to realize is that the State agency physicians and consultants have no problem offering opinions that could literally impact a person's life, after only a 15 minute exam or a review of a few records.
How do we get across to treating physicians the importance of offering opinions? I think the treating docs think patients are asking them to say the patient is disabled when all they are really being asked is to offer an opinion about the very conditions they are treating the patient for, whether these opinions are ultimately supportive of disability or not.
Anyone have the deets of what the specific proposed new rules are or do we have to stay on the edge of our seats?
ReplyDeleteACUS did an analysis for SSA on the treating physician rule part. Your guess is as good as mine on whether the NPRM will follow that.
ReplyDeletehttps://www.acus.gov/sites/default/files/documents/Treating_Physician_Rule_Final_Report_4-3-2013_0.pdf
Seems all new rules they want to pass serve to make things more difficult, even to the point that the rules they propose contradict other new rules. The proposed rule to prohibit submission of evidence within five days of a hearing is completely illogical when combined with the current rule requiring submission of all evidence. If a rule requires a person to submit all evidence, how can that rule exist with another rule that prohibits the submission of evidence. How can one rule require something and another rule prohibit what the first rule requires?
ReplyDelete@ 12:54
ReplyDeleteThey will certainly enable some bad acting by adjudicators with an agenda to deny. While I expect many ALJs would apply the rules and the exceptions fairly there will be some that will abuse their discretion. For them, anything that comes in within five days of a hearing that supports denial gets in. Anything that comes in within five days of a hearing that actually proves disability doesn't.
I may be cynical, but my belief is that they first passed rule requiring submission of all evidence thinking that would enable more denials. Seeing that that didn't work, and instead probably resulted in stronger better developed cases, now they want to go the other way and limit submission of records in hopes that more denials will be enabled that way. However, how in the world can both rules exist? How can a person be required to submit all evidence, as required by recent rule, if he is prohibited from submitting evidence that he receives within 5 days of hearing? It's like saying you can't speed, but if you are going to slow you will be required to go 100 mph.
ReplyDeleteView from an insider: do whatever you must to get this thing deep-sixed. Why? Because the ALJs have been under intense pressure to move, move, move cases. Allowing them to have a solid basis on which to start excluding evidence may be too tempting to resist in our numbers driven culture. Even ALJs who are serious proponents of DP may end up taking the path of least resistance. At least in some cases. They are only human and the pressure is unbearable to the point that it will ultimately destroy the system as we know it. Those who only give DP lip service will embrace it with both arms.
ReplyDeleteAs for any discussion of adopting the FRCV for our process (which is being discussed), that would be insanity and would not work for our particular paradigm of hearings.
However, the ALJs, inside attorneys and out side attorneys should fight to form a commission to come up with workable rules. It would not be easy to even get it formed, never mind doing the work. However, I really don't see how the current system could be maintained without something similar. Before long an insurance company will be running the disability program, if we don't do something. It is not as far fetched as you think.
@ 12:21
ReplyDeleteI'm an insider, too, and maybe it's just because my office's judges are generally decent, but what you all are talking about is not at all what the practical effect of the 5-day rule will be. I imagine our judges will allow any MER--favorable or not--closer than 5 days so long as there's a decent reason for its late submission.
What the rule is really going to do for us is close the door on lazy reps who don't do ANY development until AFTER the hearing. These jokers have a penchant for not submitting anything in the 1-2 years from 1696 until hearing, and then after getting their first post-hearing extension, dropping hundreds if not thousand+ pp of medicals dating from before they came aboard. We cannot wait for this practice, which totally overloads our clerks, to come to an end thanks to the rule change.
Maybe I'm just naive, but I would imagine this is the major reason why we are making the rule change. I mean, the sky hasn't completely fallen in Boston, has it??
To 12:21. Please explain how a rep is required to submit all evidence by one rule and yet prohibited from submitting evidence he receives within 5 days of hearing by another rule? How exactly can a rep be required to comply with 2 completely opposing rules? Did you see the speeding analogy at 8:22?
ReplyDelete11:10
ReplyDeleteDon't be dense. You have a duty to submit everything. There's a time limit on submission of (all) evidence. You can read the two together in a perfectly logical way.
Do you also sillily believe we expect you to continue submitting all evidence after the decision is issued? 20 years later? Just treat the 5-day cutoff like any other procedurally relevant date like, I dunno, the date of decision or something.
Criminy!
11:10
ReplyDeleteActually the evidence submission rule says you have to submit all evidence, not just evidence you receive prior to 5 days before the hearing. It also says you must submit all evidence and you have no choice in the matter. Read the evidence submission rule before you start calling people dense. It clearly contradicts the proposed 5 day cut-off rule.
Poor drafting and that old "get it done" mentality at SSA. Idiots piloting that ship right into the ground.
ReplyDeleteSsa is trying so hard to solve it's problems by overregulating reps, that literally the rules are heading in a direction in which the rules are completely self-contradicting. I guess that is because they can pass more rules for nothing, but taking real steps to solve their problems will cost actual money.
ReplyDeleteYou guys are being hyper technical babies over these rules because you don't like them.
ReplyDeleteI really don't want to get into the nitty gritty of statutory interpretation, but here are the highlights of the argument if I were to make it:
- the "submit all evidence" rule doesn't talk about timing at all, it speaks to the types of evidence.
- the law has this general rule where you always try and read two or more seemingly contradictory statutes/regs/etc. in a way that allows all to be preserved/applied while still being logical.
That should be enough for you to figure out where I'm going.
I would agree, the new "all-evidence" rule can be construed, easily, as contradictory to the "all-evidence in before the cutoff" rule. And, as reps, we should be readily prepared to flaunt this inherent contradiction when we request extensions for recent evidence or when dealing with difficult facilities, in arguing why the judge needs to keep the record open and consider the evidence.
ReplyDeleteBecause, unfortunately, the Agency is just as good or bad as their backlog, in most respect. The bigger the backlog, the worse they are. The smaller the backlog, the better they are. In general, based on my practice.
4:44
ReplyDeleteIts bad drafting and worse vetting.
"Geterdone!"