What immediately jumps out at me from a 176 page Notice of Proposed Rule-Making (NPRM) that Social Security is publishing in the Federal Register tomorrow:
- We propose to revise our rules in 20 CFR 404.1504 and 416.904 to state that we will not provide any analysis in our determinations and decisions about how we consider decisions made by other governmental agencies or nongovernmental entities that an individual is disabled, blind, or unemployable in any claim for disability or blindness under titles II and XVI of the Act , and that we are no t bound by those decisions. Although we would categorize decisions made by other governmental agencies or nongovernmental entities within the other medical evidence category if made by a medical source or a statement if made by a nonmedical source , we propose to state in 20 CFR 404.1520b and 416.920b that these decisions are inherently neither valuable nor persuasive to our disability and blindness determinations. ...
- [W]e propose to state in 20 CFR 404.1520b(c)(2) and 416.920b(c)( 2 ) that we will not provide any analysis about how we considered disability examiner findings from a prior level of adjudication ...
- Consistent with our goals to better define and organize our evidence regulations to produce more accurate and consistent determinations and decisions, we propose to define a statement on an issue reserved to the Commissioner as a statement that would direct the determination or decision of disability. ... Although a statement on an issue reserved to the Commissioner would be categorized within other medical evidence if made by a medical source or a statement if made by a nonmedical source, w e would not provide any analysis about how we consider ed such statements at all in our determinations and decisions . ...
- To help adjudicators, representatives, and courts identify statements on issues reserved to the Commissioner, we propose to include the following in 20 CFR 404.1520b(c)(3) and 416.920b(c)(3) :
- statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;
- statements about whether or not an individual’s impairment(s) meets the duration requirement for disability; statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments;
- in title XVI child claims, statements about whether or not an individual’s impairment(s) functionally equals the Listings;
- in adult claims, statements about what an individual’s RFC is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 in stead of descriptions about his or her functional abilities and limitations ;
- in adult claims, statements about whether or not a n individual’s RFC prevents him or her from doing past relevant work;
- in adult claims, statements that an individual does or does not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2 ; and statements about whether or not a n individual's disability continues or ends when we conduct a continuing disability review (CDR) . ...
- In order to assist representatives and our adjudicators in interpreting our rules, we propose to revise our rules to state affirmatively our current policy that we will not use a diagnosis, medical opinion, or an individual's statement of symptoms to establish the existence of an impairment(s). We would clarify our rules to state that a physical or mental impairment must be established by objective medical evidence from an AMS. We would continue to follow our current policy if we have objective medical evidence from an AMS that a claimant has a severe impairment(s) at step 2, we will consider all evidence to determine the severity of the impairment(s) and all other findings in the sequential evaluation process. ...
- [W]e propose several revisions to how we consider medical opinions and prior administrative medical findings. First, we would no longer give a specific weight to medical opinions and prior administrative medical findings; this includes giving controlling weight to medical opinions from treating sources. Instead, we would consider the persuasiveness of medical opinions and prior administrative medical findings using the factors described below. Second, we propose to consider supportability and consistency as the most important factors. Finally, we propose to reorganize the factors to: (1) list the supportability and consistency factors first, (2) include a "relationship with the claimant" factor that combines the content of the current examining relationship and treatment relationship factors, (3) list individually the three different factors currently combined as other factors, and (4) restate the factors using consistent sentence structure. ...
You would think in reading this that Social Security believes that the federal courts are packed with Republican appointees eager to go along with anything hostile to disability claimants. Good luck with that theory. If this is finally adopted, which is doubtful, expect it to be eviscerated by the federal courts.
23 comments:
I guess that SSA wants EAJA fees to quintuple over the next two years.
Well this is horrendous. But, I do see a silver lining...a very thin silver lining.
Pgs 40-41 appear to suggest nurse practitioners will be considered acceptable medical sources and pg. 42-43 appear to suggest SSA is considering if physician assistants should be considered acceptable medical sources.
I stated recently in another thread that I would be shocked if they are considering making NPs and PAs acceptable medical sources. I must now eat my hat...although SSA appears to be making these changes while they butcher the weighing of medical source opinion evidence. Strange times.
Let me summerize for you: Our determination of a claimant's "disability" is determined by our cursory look at the claimant's medical records. We reserve the right to ignore the claimant's and any doctor's statements and will ignore the opinions of any outside source. Our opinion is paramount, any other opinion and the truth are irrelevant!
Don't forget it appears Claims Examiner's at the early Initial and Reconsideration levels are making determinations about which medical records are relevant or material, and inappropriately excluding those they determine are not relevant or material, when they lack the requisite expertise to do this. Moreover, they are doing this without notice to the claimant. This cannot and should not be allowed.
An unrepresented claimant who knows the evidence in question was submitted, may never know otherwise, and be permanently disadvantaged, while those who are represented may have representatives who know they submitted the evidence, and not realize it's missing when they review the file, especially large 1000+ pages files.
If and when the excluded evidence is ever discovered, the ALJ will be upset and may refuse to allow it, even though it had originally been submitted at the DDS level.
It's one thing to weed out duplicate medical records, but allowing CE's to exclude medical records they inappropriately believe are not material or relevant is a due process and civil rights violation.
This must stop immediately and not be allowed to continue.
Hopefully you all do realize that when a claimant is sent out for a CE that only about 20-25 pages of records are sent to the CE and I will tell you this as an ALJ, I have no idea as to who selects the 20-25 pages sent out..
I am commenter 3:30 and also SA 27. My Disability Claims Examiner called me again within minutes after I wrote the above comment. Toward the end of my conversation, she asked whether I had any questions, and I said I just want to make sure that all of the medical records I submitted with my application will be placed in the file before any determination is made. Once again, she said only medical records from 2014 would be included because she does not have to consider any medical records during the years I worked. I explained to her this is not what the SSA laws and Regulations state, and that it is a violation of my due process and civil rights. She yelled at e and said the issue is a non-negotiable one and exclusively her decision. Then, she hung up on me. I later called, got the name of her supervisor, and left a detailed message.
Clearly, I know ALL the medical records I submitted are material and relevant. Before the CE hung up on me, I asked her if she does this with other claimants who may not be represented, and never even know records submitted on their behalf may have been excluded. She did not deny that is the case. I told her she cannot pick and choose what medical records will be placed in any claimant's file. She insisted she could. Having spoken with her a few times now, I can assure you this is not someone who has the academic and educational background necessary to make such a determination.
I also asked her why she was requesting medical records from all my doctors, even though I already submitted them, which clearly causes needless time and energy of staff in my doctors' offices, as well as hers. Her response, "I have a checklist." I said I understand you may have a checklist, but you know my history and background with the Agency well enough to realize I gave you everything you need. I said you are going to end up with a lot of duplicate information that someone on down the line will have to sort out. I was informed the only thing which matters is her "checklist."
This is nuts. Here's a thought: If SSA is going to give individuals like these the authority to pick and choose which medical records are placed in a claimants file, how about requiring a certain level of literacy and educational background? This reminds me of ODAR's abominable effort to groom support staff into attorneys. My full court public press is now officially underway.
In honor of Star Trek's 50th Anniversary, I must quote my favorite doctor, Dr. Leonard "Bones" McCoy, "The beaurocratic mentality is the one constant in the universe!" SA27, you're experience with this CE was not unlike my own, although my contact with the two I talked to was out of seeking information. My questions of, "What is proof?" were left unanswered, much like Pilate's ,"What is truth?" Sometimes I feel The Rand Pauls of the world are like the Pharisees that doubted that the man blind from birth had really been blind! Apparently to the willfully ignorant (dumb on purpose), that blind man and I have just been faking it all these years...
The only time records are excluded or deleted from a file is when they are on another person . Totally blank pages may also be deleted at times. What coul happen is that a disability examiner might refuse to write for records that are. "Too old". That is more than a year before your alleged onset date if they are not considered to be relevant. The disability determinations are subject to review at the federal level by any one of the OQRs across the country who will return a case to the DDS if efforts were not made to obtain records from all sources. The file also shows what records were received so I do not see how massive amounts of records could be removed. Most people are too lazy to do so as it takes a lot of work, It is true that the DDS does not send a lot of records to the CE vendors. They are not allowed to. The vendors want to charge extra. Also as in most cases we are not allowed to send e-mails all records sent have to be printed and mailed. On the other hand some CE providers have said no records were sent when I know they were because I put them in the mail myself.
@9:04
SA 27 here. The Disability Claims Examiner in my case is excluding all medical records before the alleged onset date, i.e., when I worked. This is nuts. Without reading the history and objective medical findings over the years, no adjudicator could reasonably be expected to understand the severity of the impairments, and how they reached the point where they are today.
In addition, by excluding all of this evidence, the adjudicator will not see the interrelationship my impairments had with my work for many years, and numerous communications my physicians had with the Agency concerning adequate reasonable accommodations, and 16 years of fighting the Agency to simply allow me to perform my job as I had successfully done for so many years, since they were so determined to keep me in the SA position, and knowingly allowed certain malignant forces within blackball me from being selected for other opportunities, which would not have required the degree of persistent typing. Goodness knows, I certainly had earned numerous accolades, performance awards and QSI's for many years, and was more than well qualified and deserving.
Having been a SA with ODAR for 27+ years, there is no doubt the evidence this Disability Claims Examiner plans to exclude is relevant and material. As a claimant, especially one with my background, I should be allowed to present my case in the manner I know it should.
No half baked bureaucrat whose thought processes and decision making ability do not extend beyond a "checklist" should be allowed to pick and choose which medical records are placed in my file, and mess the neatly organized medical records I submitted with a bunch if needless duplicates. This is just asinine, and I plan to scream bloody murder just as loudly and publicly as I can.
9:04PM This line of thinking (only records from last year) is most lkely a cost savings measure. However, if submitted, older records should be considered because they help to establish the progression of disease. Frequently, people become disabled over time, often over decades. Ignoring years or even decades of track records of progression can lead to poor decision making. But, if making poor decisions works in SSA's favor (more denials) without any negative consequences to employees...
SA 27 you should know yourself that you have the right to review your file and submit whatever you want. If you are in GA, the DDS is going to deny you anyway, and your belligerent attitude is only going to make that a certainty. Continuing that attitude when you represent yourself before an ALJ will make the ALJ and new SA work even harder to write a bulletproof decision denying you. Other than ODD and a personality DO, what disability do you have?
Doctors who write a letter saying my patient is disabled, period, while his records show no objective findings of anything and. Subjectively the claimant says s/he has back pain, fibromyalgia, and is anxious and depressed ( which I see multiple times a day) should not be considered and are a massive waste of time. So is the VA determination of a Rating for ED 10%, flat feet 10% etc., and PTSD 50% where the serviceman has never left the states! They never even look at the DD214, and moving them to the front of the line (while they are drawing $6 - $10 K a month from the VA) for adjudication while others have been waiting 1 - 2 years with little to no income, should be outlawed.
I'm not sure I share Charles' hopeful statement that the federal courts will eviscerate this. I see the Courts saying, "well, that RFC opinion and the diagnoses are issues reserved to the Commissioner so those decisions are beyond our review."
No analysis required. No treating physician rule. And sister agency's decisions? Bah. Who cares if it is a 100% disabled veteran with PTSD? No "objective" evidence, so not disabled. This rule implies that VA is just coddling all those veterans and handing out 100% disability determinations like they are so many MREs.
I foresee perfunctory, check the box denials from ALJs, which is certainly one way to get rid of the backlog. One wonders if many ALJs will even be needed anymore. 1 ALJ per office, with an army of decision-writers, all checking the box "not disabled" and the ALJ signing his name.
" Instead, for AMS medical opinions and prior administrative medical findings, we would explain, in the determination or decision, how we considered the factors of supportability and consistency because those are the most important factors." Still sounds like an analysis of opinions with an explanation of some factors would be required to me.
@7:00AM
SA 27 here. If anyone has a belligerent attitude and the arrogance to think they have the expertise of a psychiatrist/psychologist to diagnose me with ODD and a personality disorder, it is you.
I was illegally forced out of my SA position for no good reason after 27+ years through no fault of mine. As I indicated in previous posts, my employment case involves misconduct and wrongdoing, including criminal acts, on behalf of several Agency officials and employees. I have been without an income for 3 years now. The Agency has fought tooth and tried to derail my case at every single opportunity. My attorney fees are out the wazoo, and I have not even seen a judge yet, because of all the misconduct, wrongdoing and criminal acts involved in my case.
Now, you have the arrogance to play psychologist and diagnose me with mental impairments from the comments I have made here, and try to tell me ALJ's and SA's cannot wait to write bullet proof denial decisions if I continue to stand up for my civil rights. At this point, who is going to stand up for my civil rights if I do not? If you are not fully aware f my situation, I refer you to recent comments I have made on this board. If you are aware, and made the remarks you made knowing what I have been put through no fault of mine, then shame on you. Nevertheless, your conduct and behavior shines a spotlight on why this Agency is in the mess it is, e.g., hiring and retaining people like you who will toe the Agency line, and forcing people like me, an intelligent individual who has critical thinking skills and is not afraid to use them.
Apart from the domestic violence and disability issues in my situation, let me tell you what I am guilty of, which is the primary reason I had a target on my back to be forced out the door: In 1997, when corrupt managers in my office threatened to do away with the SA program in my office, I, along with my Supervisory Attorney who had a 20+ year career with the Agency, stood up to these bullies and refused to allow them to do it. They illegally forced her out the door in the same manner as I in 2001. These corrupt officials, and the minions they promoted over the years to toe the same level of corruption and wrongdoing, now comprise many of the highest positions in the Agency. It is only because of what we did that the SA program lasted as long as it did. Had we allowed these bullies to succeed in 1997, I seriously doubt there would have been any SA program during the years many of you worked as SA's, and some even moved into ALJ positions. You can thank us.
I would do it all over again, and the last thing I will do is not stand up for my civil rights. If you are an ALJ who interprets this to mean I have ODD and a personality disorder, well I am not surprised, as I have seen plenty of your type through the years, e.g., you are the exact type of person TPTB gravitate to and bend over backwards to hire and promote, and why the Agency is in the mess it is.
SA 27 here.
For the record, I spoke to a DDS Supervisor at length a little while ago, and everything in my case has been taken care of. I appreciate the kindness and understanding of the supervisor I spoke with. I now feel confident all the medical records I submitted will be placed in the record. This Supervisor will be handling my case from this point forward. Madam, if you read this blog, I want to personally thank you for everything and handling this in such a professional manner. Kudos to you!
hey SA 27
If they started gunning for you back in '97, why did it take until three years ago (2012-2014 timeframe) to remove you? And when did you rack up all those QSIs and accolades you mention? I'm guessing it was before 1997. Makes me think they weren't really trying that hard to get rid of you if it took them nearly 20 years to do it despite having a very personal, big reason to have done it swiftly. And with the nearly 20 years they had to execute it, according to you they even bungled that and very obviously did all manner of illegal and improper acts in the process.
People constantly question and mock you because your story doesn't make much sense. There's more going on or different things going on than you say.
@5:05 stated, "People constantly mock you, (SA 27), because your story does not make much sense."
You seem to be the only one mocking SA 27, and lack the IQ and critical thinking skills to understand and appreciate what has happened to SA 27, which has been corroborated and supported by many commenters on this board. If you had more than half a brain and actually read through threads from the past year, you would know this.
No, with each and every remark you make, the only thing you accomplish is revealing what a jackass you are.
@5:05
I'm going to start calling him Pavlov. Charles Posts; Let me tell you about illegal management retaliation. Charles Posts; let me tell you about illegal management retaliation, etc., etc., etc.
Charles needs to retitle this blog SA27 News. Seems for appropriate as of late.
@1:45
No, a much more appropriate title for the blog would be: Illegal Management Retaliation and Unspeakable Harassment Widespread and Pervasive at SSA/ODAR with No Accountability, History of Cover-Up, and Sweet, Cushy Deals for Those Who Get Caught.
I have refrained from getting into this current debate regarding 27, not because I don't believe her, quite the contrary. I believe everything she says and I thought she was doing a fine job of defending her position, and she is. However, sometimes even seasoned warriors need a little back up, and make no mistake, 27 is a seasoned warrior that has gone up against a corrupt and mentally challenged group of SSA management that has no integrity and do whatever they must to save their own a$$es.
Now, I have been in management and out in the field as a rank and file. I have been with the Agency a long, long time and the tales I could tell! I am currently in a position that I enjoy and I have no ax to grind in general. However, I can attest that it is absolutely true that not only are some management officials prone to this behavior, in some training sessions it has actually been encouraged. Although there is generally no respect for the idiotic middle managers in ODAR, what most of you all don't know is that at one time in the not too distant past they were regularly reminded that that they had very little employment protection, thus they better tow the line and deliver the results they were told to deliver.
What has happened in this Agency is that the gestapo mentality of the operations side was slowly introduced into the ODAR culture, thus fulfilling a long time wet dream of the Baltimorons. Said for emphasis not for crudeness.
So 27, you go go girl! As for the straw men and Agency lackeys, be careful for what you say now because the being the target of a corrupt and unscrupulous manager could very well be in your future. The odds of this happening increase drastically as you get older and those in positions of authority grow younger. Just wait.
@2:14
SA 27 here. You have so eloquently and clearly put into words everything I am experiencing and going through. I sincerely appreciate your support. This is a challenge like none other. While I maintain the, "You go girl," motivational ethic, even the most hardened fighters can use some back up. Thank you.
Sounds like Tim at 2:27 pegged it right. If these become regulations, how would the Courts provide any counterbalance? Courts are supposed to apply the law, as set out in duly adopted regulations. It makes me so sad for the disability claimants, that SSA is trying to stack the deck against them.
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