Sep 3, 2016

CCD Opposes NPRM On Medical Evidence

     The Coalition for Citizens with Disabilities (CCD), the largest umbrella group of organizations involved in advocating for persons with disabilities, has submitted comments on Social Security's Notice of Proposed Rule-Making (NPRM) on ensuring program uniformity at Social Security. CCD opposes the changes for these reasons (which are elaborated on in the CCD letter):
1. Creating an arbitrary deadline for the submission of evidence is inconsistent with the statutory and regulatory duties of the Commissioner to fully develop the record and inconsistent with the duties of claimants to submit all evidence as required in 20 C.F.R. §404.1512 and §416.912.
2. Excluding material evidence is administratively inefficient and will increase appeals to the Appeals Council and to federal court.
3. The proposed rule ignores the reality that testimony, and sometimes new evidence, is routinely introduced at or after ALJ hearings, and claimants and representatives need the opportunity to respond.
4. Serious problems and inconsistencies exist with the implementation of the 5 business day rule in Region I.


Anonymous said...

Would love to hear suggestions on how to fix this issue. Hearings are set up back to back, so bringing in more than a few pages steals one's hearing time or someone else's. You cant get a report from yesterday's dr. appt. to the hearing 2 weeks ago! And CDR's are certainly allowed to get later MER so closing the record is a fiction. There is a million case backlog, suggestions are needed. B/t/w - pending DROPPED in August, first time in a long time. The corner might have been turned.

Anonymous said...

I'd be surprised if the agency walks these regs back or changes them to any substantial degree. It's the one bone they are throwing to the judges to try and offset all the tension surrounding the lack of support resources in the hearing offices. All the recent hiring has been to establish the centralized national and regional assistance centers and case tech and writing positions in local offices have been left vacant. Now that the central centers are filled we now have a hiring freeze so the hearing offices still can't fill vacancies. Add on to that, case techs now get to telework and the offices are ghost towns with just judges and managers and very little of anyone else. With a million plus backlog, my office can't schedule cases because of insufficient staff to schedule them. I asked for 56 cases for this month, they managed to schedule 40 almost all at the 20 day deadline. I have a whopping 13 cases scheduled so far for October. Oh and since we keep hiring new judges but no writers, the writing backlog is exploding. these regs are designed to eliminate cases going into POST because we largely don't have the staff to mange the workload even if that workload is just waiting on attorneys to submit things.

Anonymous said...

With Judges routinely reviewing files a day or two before the hearing, or sometimes for the first time after the hearing, the proposed rule is simply arbitrary. It's only purpose is to exclude evidence. It serves no role in making sure a decision is based on consideration of all relevant or related evidence.

Anonymous said...


Thanks for the helpful analyis. If you don't mind, what's the 20 day deadline you mentioned?

Anonymous said...

We have found that medical evidence submitted several weeks prior to the hearing is often not exhibited and therefore not reviewed by the ALJ prior to the hearing. These cases were not delayed as a result of any rep or claimant issues. The Agency's suggestion that late submission causes delays is simply a fiction.

Anonymous said...

It is a fact! If the record is complete at the hearing, the instructions can be written and the case sent for writing the same day. If the record is left open for more medical evidence - maybe the claimant did not tell the rep they had gone to 10 new doctors at the hearing because they did not meet before the hearing - we wait, and a month or two later the evidence comes in, and in between preparing for or holding the next hearing, the ALJ has to re-review the file and new evidence, make a decision, write instructions, and send it to writing.

The 20 days is the written notice to the claimant of the date and time of the hearing.

Anonymous said...

I am a retired ALJ who served from 1981 through 2009. I lived through Program Unification, Dr. Susan Daniels' attempt to get judges to conform to State Agency policies, and the Region 1 experiment ostensibly proposed to speed the decision process and reduce the backlog but which, in reality didn't work. The 5 day rule for submission of evidence was rarely enforced! I did it just once, in a case that had dragged on, with multiple adjournments, and at the last one, the attorney tried to submit old evidence that could have been secured when he first began representing the claimant. The new rules in this NPRM are just another way to try and reduce favorable decisions! And like all the previous failed efforts, whether by Democratic or Republican Commissioners it too will fail. But, don't think for a minute that SSA will actually take into consideration any of the comments. It will publish the final regulation with little or no change.

Anonymous said...

This proposed rule is written for SSA and not for claimants. The only reason to comment on the rule is to make SSA scribes address its hypocrisy. But that won’t change the rule. SSA is sick and tired of understaffed ALJs and Field Offices etc. So let’s face it, with a non-entity at the helm, every component in SSA is looking for a way to get a bone. Witness all these ridiculous proposals in the last year.

If the public is not demanding congress adequately staff SSA, congress will not. It almost makes sense to put the claimants last. That’s the hypocrisy of this new rule, and SSA should say it can’t handle the backlog. But nobody has the backbone to stand up to those in the senate and house who have been so hostile to SSA. There may be over a million hearings pending, but the biggest backlog is agency leadership.

Anonymous said...

What would anyone here on this blog say to an ALJ giving a psychiatrist part of a medical file from a workers compensation doctor on the SSA applicant? The rest of the file was omitted by the judge which would have been in favor of the claimants injuries, especially her physical injuries. She only went see the SSA psyche per her attorneys request, so in both comp & SSA, more people are just mentally ill rather than physically disabled...This appears to be just out right bias by the judge to either call her nuts or to diminish the physical injuries or both but in fact in clear violation of her civil rights and the judge should not have not have been involved in any of the part to transfer medical data to the psychiatrist. But this is what is done to injured workers who are pushed into SSA rather than the employer pay for the real injuries.

Anonymous said...

Good comments by the CCD.

Anonymous said...


This trend toward discounting physical impairments and finding one nuts/crazy is disturbing and on the rise. It's a clear violation of civil rights, but extremely difficult and time consuming to rectify.

In response to the ALJ giving part of a medical file from a WC doctor on the SSA Disability claimant to a psychiatrist and omitting the rest of the file/medical records, is an extreme violation of due process and civil rights.

Neither ALJ's, or the SSA Disability Program, should legally or ethically be allowed to manipulate a claimants medical records by cherry picking which records are in the file and excluding those which favor finding the claimant disabled whether based on physical or mental impairments, or a combination of both.

In order to deny more cases, this overt manipulation of a SSA disability claimants medical files from the point they file their application forward is not only disturbingly on the rise, but frightening if allowed to continue. Apart from addressing the issue by continuing to appeal, which takes years, and is not likely to be successful before District Court, since ALJ's are doing this too, is there anyway to stop it other than a class action lawsuit against SSA.

I just do not see how SSA and ALJ's should ethically or legally be allowed to do this.

Anonymous said...

SA 27 here. You may recall I had to apply for SSA Disability because it is required for DR.

Although I submitted all relevant and material medical records already organized and in order, I still had to sign a medical release form, "So SSA could obtain the very same records?" This is not efficient use of money, time and resources.

Then, the Claims Examiner calls me and indicates none of the medical records pertaining to impairments I had when I worked will be in the record, even though these impairments are the (disability) reasons I was forced out of my job.

The CE contacted me again, and asked me to contact a list of my doctors they identified who had not responded to SSA's request for medical records. Of course, my doctors offices already know I obtained my medical records and already submitted them. Moreover, SSA and the CE already have these records which I submitted to them. Nevertheless, I am informed none of the records from the list of doctors they identified will be placed in my case record if the doctors do not respond to their request for the very same medical records.

Of course, I again explained in detail they already have all of these medical records, which I gave them. Also again, I may as well be speaking to a brick wall. I went out of my way to organize and submit my medical records to SSA. My file should have been very easy to set up. They still go out and seek duplicate records and unnecessarily bother staff at my doctors offices. Then they threaten not to include the "duplicates" they requested from my doctors who do not respond to their request.

The impression I distinctly get is few, if any, of the relevant material and well organized medical records I submitted will actually be placed in my file; there will inevitably be lots of unnecessary duplicates which will have to be sorted out at the hearing level (needless cost of time and labor); I expect medical records will be cherry picked and those in my favor omitted; and even though I have numerous physicians and 1000+ pages of medical records, they have already asked me to go to one of their doctors for a CE. So, all my doctor's and numerous specialists, and they still want a CE? We already know what the CE will say. Again, not the best use of money, time and resources, but then again, neither was illegally forcing me out the door.

My chief concern is that all the medical records I submitted, which as an experienced ODAR Senior Attorney of 27+ years, I know are relevant and material are permanently in the record. I am getting the distinct impression that will not be the case. Is there anything I can do as a claimant to contest this other than the ordinary appeals process?

Anonymous said...

Depending on who your congressional reps are, I would go that route. Then, if you are not adverse to publicity, I would go the news route, that is get a hold of a local reporter looking to make a name for their selves or "consumer tv news team. You get the idea. You know how the Agency hates it dirty laundry being aired. I say air it out.

Anonymous said...


SA 27 here. This is exactly what I have been thinking. Before going full throttle, I wanted to make sure no stones were left unturned apart from the appeals process. So, I will proceed to do exactly this with a full court press.

Of course, I will explain in excruciatingly great detail how I was illegally forced out of my 27+ SSA/ODAR career as an Attorney, and Senior Attorney since 1995,
and left with no choice but to apply for DR, which requires one to apply for SSA Disability.

I would also like to point out the recent trend toward portraying individuals who apply for benefit programs in general, or who pursue their legal rights, e.g., Workers' Compensation, the EEO process, Union Grievance, etc., is to portray the individual as Crazy or Nuts.

For example, I had no choice but to file for WC right after I was illegally forced out of my SA job. Of course, my reasoning centered around severe cervical disc disease, hx 4 herniated discs, 3 fused discs, stenosis, hx spinal cord compression with radiculopathy and myelopathy symptoms, and progression throughout the entire spine, including a severely herniated lumbar disc with causation and acceleration being the persistent typing now required by my SA position, which the Agency has gone out of its way, and persistently and repeatedly refused to reasonably accommodate. Despite all of this history, the Agency submitted my WC case based SOLELY on mental impairments, e.g., insinuating I am Crazy/Nuts/Psycho. Because of their callousness, my WC case has been a mess ever since going no where fast.

This trend to portray anyone pursuing their legal rights as Crazy/Nuts/Psycho knows no boundaries. There is even a term for it now among the scientific, academic, intellectual and professional community: Crazy Making Abuse with the emphasis placed clearly on ABUSE (Assault).

Anonymous said...

"Hearings are set up back to back, so bringing in more than a few pages steals one's hearing time or someone else's"

If a Judge schedules five hearing a day (A very common scheduling) that means ten hearing days per month. and ten days with no hearings. Hardly back to back. Most hearing offices are ghost towns after 2:00 PM and especially on Monday or Friday.

I am quite tired of Judges whining about how hard they have it. I have been on both sides of the fence for nearly 40 years. The job is not easy on the psyche but not at all hard in terms of getting decisions done quickly and fairly if you understand the law and want to apply it fairly.

Anonymous said...

I am amazed at how, despite protestations to the contrary, SSA is slipping towards proving claimants disabled beyond a reasonable doubt rather than finding substantial evidence for finding claimants disabled.