From Social Security Ruling 17-2p, which will be published in the Federal Register on Monday:
At the hearings level or at the AC [Appeals Council] level when the AC issues its own decision, the adjudicator is responsible for the finding of medical equivalence [to a Listing]. The adjudicator must base his or her decision about whether the individual’s impairment(s) medically equals a listing on the preponderance of the evidence in the record. To demonstrate the required support of a finding that an individual is disabled based on medical equivalence at step 3, the record must contain one of the following:
1. A prior administrative medical finding from an MC [Medical Consultant] or PC [Psychological Consultant] from the initial or reconsideration adjudication levels supporting the medical equivalence finding, or
2. ME [Medical Expert] evidence, which may include testimony or written responses to interrogatories, obtained at the hearings level supporting the medical equivalence finding, or
3. A report from the AC’s medical support staff supporting the medical equivalence finding.
22 comments:
Skipping to the final two paragraph would save a great deal of time.
Basically, an ALJ no longer needs to provide any justification (not that they generally did) for not addressing a particular listing so long as they conclude the claimant is not disabled at the 4th and 5th steps.
If an ALJ does find medically equivalence, then they must provide a rationale for such a finding, articulating specifically how the evidence of record supports the conclusion that the listing is equaled.
So, no burden if a claimant is denied, but a high burden if the ALJ wants to award benefits...great.
So before this ruling, to prove equivalence to a listing, you needed an opinion of an ME designated by SSA. After this ruling, you need the same thing.
@2:01
And the ALJ's bare assertion that listings are not met is now recognized as sufficient.
@4:15
Not to be a doubting Thomas where do you get that read from ?
What a load of dung. I assume this is partially in response to frequent remands from District Courts on the issue. If you can't issue legally sufficient decisions, just change the rules so you don't have to.
@4:50
"... the adjudicator is not required to articulate specific evidence supporting his or
her finding that the individual’s impairment(s) does not medically equal a listed impairment. Generally, a statement that the individual’s impairment(s) does not medically equal a listed impairment constitutes sufficient articulation for this finding. Generally, a statement that the individual’s impairment(s) does not medically equal a listed impairment constitutes sufficient articulation for this finding."
Page 10, 2nd paragraph.
4:15 and 5:06 here
Not sure how the final sentence was double quoted. But in any event, that is the language I find establishes that ALJs need not provide adequate explanation of why a listing was or was not met.
This actually has been the norm in my experience, but now it is just codified...or at least a part of agency policy.
doesn't that only refer to whether the listing is equaled, not met?
In other words, we have decided that Roger Goodell can make any decision he wants, without reason, evidence or explanation or sense of honor. What is this world coming to?
I believe it is easier today to convict an innocent person of murder than it is for some people who clearly meet the standards of SSDI. Part of the reason for this is the lack of objective medical testing available for proving pain. Blood tests are nowhere near as indicative as your lead to believe. You can have the marker and not have the disease or you can have the disease without the markers. Plus, with rarer syndromes, etc., I don't believe doctors see enough cases to really understand more unusual cases. They come with preconceived notions of what x looks like and have great difficulty figuring out or even accepting combinations that don't fit the norm. So, if you have a case of x+£+¥, and they don't line up with their expectations, doctors (in my experience) are dismissive because THEY can't figure it out. So, the patient calls to move up the next appointment, because the medications aren't helping them...
A major reason why innocent people can be convicted while disabled people are denied has to do with how each treats witnesses. In SSDI cases, the witnesses have a relationship with the claimant and are therefore able to observe the claimant over time, seeing things that form patterns. They don't observe it once, but time after time. Yet SSA virtually ignores and dismisses eye witness accounts, presumably under the assumption that friends and family "will say anything" to help someone. In murder cases, however, witnesses are generally treated as totally impartial experts of what happened during an event, despite the fact that eye witnesses are notoriously unreliable.
Ironically, I have been a witness in a murder case, an SSI case and have had witnesses in my own SSDI case. I was working at a convenience store 13 years ago. I went to the store to visit the assistant manager who was working the overnight shift. We played a couple of games of chess and finalized a trade (basketball cards, etc.). I was about to leave, bt started playing with some cigarette lighters in front of the registers. A man walked up next to me, putting 4-5 items on the counter. The assistant manager said, "Hello," and started ringing up the items. He asked, "Would you like a sack for that?" The man, standing right next to me, said, "If you do that again, I'll f*#%ing kill you!" "What?" the assistant said. The man said, "If you do that again, I'll grab my knife and cut your f*#%ing head off! I just stood there, continuing to flick the lighter on that I was holding, looking straight ahead, but looking at the man through my peripheral vision. The assistant bagged the items, cautiously, gave the man his change, and then the man walked out to his SUV. He just sat there for 10-15 minutes. The assistant was freaking out, so I said, "Try to remain calm and don't look at him! Keep him in your peripheral vision, but don't look at him! I never turned to look at the man, but said to the assistant, "Just pretend nothing happened and he'll leave. When he started to pull away, after first backing up, I was able to see his plate numbers. He drove out onto the road, looking into the store to see if we were watching him. I kept saying, don't look at him, let him leave!" and then he sped away. The assistant called the police, while I went outside to see if he was actually leaving. The police picked him up about an hour later. Slightly before that, a body was found next to the interstate. It was his ex-girlfriend. He had slit her throat with a knife about an hour and a half before her body was found, nearly decapitating her. The bloody knife was found in his SUV. From the moment he walked up to the counter, we remembered everything he did for the next 15 minutes. However, we really didn't pay ANY attention to him whatsoever, before that. When the manager and the police watched the video, he entered the store about 17 minutes before he stood next to me at the register. During that time, we finished our second game of chess and our trade. Meanwhile, the man walked into the restroom three times, eat 2 hotdogs, poured and tried several cups of soda, walked around the store a couple of times... all while we were totally oblivious to him! In fact, at least 2 customers looked at him, had facial reactions that would indicate that they recognized "something odd" about him, then went about their business. The 2, about 4 minutes apart, got what they needed, paid for it and then left. If he hadn't said anything, I'm pretty sure we would have never paid any attention to him.
Based upon other video, travel times, etc., the police estimated he had killed her about 15 minutes before he walked into the store. It could not have been more than 25 minutes or less than 12. Scary, if you think about it.
For most impairments, it's not to hard for a layperson ALJ to find that a listing is or is not met. It's way more difficult to find a listing is or is not equaled. And I've yet to hear a rep argue that a listing is equaled.
@ 9:39,
No rep worth his or her salt would argue a listing is equaled unless there is ME testimony to that effect or a CE examiner's conclusion to that effect. I watched an attorney I supervised do a hearing who argued in his opening statement that "claimant meets or equals 1.04" when the evidence clearly did not show a meeting based on the elements and there was no SSA designated ME that said there was an equaling. We had quite a talk after!
Tim,
SA-27 here. As 5:06 eloquently stated, ALJ's easily get by whether a claimant meets or equals a Listing with a brief, conclusory remark, providing they go through steps 4 & 5 of the sequential evaluation process. This is why I stated in a thread below your ankylosing spondylitis may very well meet the Listing, and the ALJ could have mulled over this with a conclusory remark to move onto steps 4 & 5. If you meet the Listing, there is no need to move onto steps 4 & 5. Everything ends at step 3 with a favorable decision for you.
I fail to see what's new here. An ALJ has always been able to find that a claimant meets a listing based on the medical record. However, a finding that a listing was equaled needed to be supported by ME testimony. After all, an ALJ is not a doctor, so how is he/she supposed to have the knowledge and background to determine equivalency? This SSR just reiterates established policy.
This SSA policy is and always has been completely contrary to the Act and regulations, which designate the ALJ as the only person legally charged with deciding disability. Preventing an ALJ from finding medical equivalence without an ME opinion effectively makes the doctor the decision maker - in direct contravention of the Act.
9:09 - Let's not exaggerate too much here. The ALJ still renders the decision as to whether someone is disabled, not the doctor. I fail to see how this policy prevents an ALJ from finding someone disabled. An ALJ is still free to formulate a disabling RFC that is consistent with the medical evidence and testimony. Anyway, what is the hardship in asking a medical expert to render an opinion as to whether a listing is equaled? If an ME finds that a listing is not equaled, certainly that doctor has more expertise to render that opinion than the ALJ hearing the case?
This policy effectively bars an ALJ from making an independent medical opinion. If you feel ALJs are qualified to do so, why then not just save the time and expense of sending claimants to CEs and just have ALJs conduct the medical exams?
First, this is most definitely a change in the law. Under SSR 96-9p, an ALJ was required to consider an updated opinion from an ME before finding medical equivalence but was not bound by that opinion. Under new SSR 17-2p, an ALJ is bound by the ME opinion even if the preponderance of the evidence would support a finding of medical equivalence. While this will not happen often, it raises a question as the claimant's right to have facts determined by an independent fact finder.
7:46 - I think you're actually referring to SSR 96-6p, not 9p. It does state that "Administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they may not ignore these opinions and must explain the weight given to the opinions in their decisions." I suppose that may be what you are referring to when you state that an ALJ is not bound to an ME medical equivalence opinion. However, that is not the correct interpretation.
First, it is doubtful whether an ME is a "program physician and psychologist." That language typically refers to a State agency medical or psychological consultant. An ME is a medical advisor per 20 CFR 404.1512(b)(6), 404.1527(f), 416.912(b)(6), and 416.927(f).
The SSR later states:
"longstanding policy requires that the judgment of a physician (or psychologist) designated by the Commissioner on the issue of equivalence on the evidence before the administrative law judge or the Appeals Council must be received into the record as expert opinion evidence and given appropriate weight."
Further, "an administrative law judge and the Appeals Council must obtain an updated medical opinion from a medical expert in the following circumstances:
• When no additional medical evidence is received, but in the opinion of the administrative law judge or the Appeals Council the symptoms, signs, and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable; or
• When additional medical evidence is received that in the opinion of the administrative law judge or the Appeals Council may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments.
When an updated medical judgment as to medical equivalence is required at the administrative law judge level in either of the circumstances above, the administrative law judge must call on a medical expert."
SSR 96-6p states that an ALJ is not bound by the State medical consultants that analyzed the claim, BUT if the ALJ believes that the medical evidence suggests equivalence is reasonable, the ALJ must obtain an ME opinion. Based on you reading of 96-6p, an ALJ could ignore the State medical experts and the ME, and still find equivalence. If that were really the case, I fail to understand why an ME would be mandated by the SSR, if in the end that opinion could be ignored by the ALJ. Further, I would question what possible medical expertise the ALJ must have in order to find equivalence given that the impartial State experts and the hearing ME found that equivalence is not appropriate.
2:04 is correct that the reference was to SSR 96-6p. If 2;04 is in doubt about the fact that ALJs, despite an absence of medical expertise, routinely resolve conflicts in medical evidence, he need look no farther that the ruling under discussion. SSR 17-2p: "the adjudicator cannot rely on an ME's conclusory statement that an individual's impairment(s) medically equals a listed impairment(s). Whether an impairment(s) medically equals the requirements of a listed impairment is an issue reserved to the Commissioner....Adjudicators will consider ME testimony and interrogatories using our rules for considering evidence."
7:54 - In your quote from SSR 17-2p, you conveniently left out the next sentence: "If the ME states that the individual's impairment(s) medically equals a listed impairment, the adjudicator must ask the ME to identify medical evidence in the record that supports the ME's statements." So if the ME statements are conclusory as to equaling a listing, the ALJ is supposed to further develop the basis for the opinion.
Yes, the ALJ routinely resolves conflict in medical evidence, but I stand by my previous comments that the ALJ cannot solely create a medical opinion, which is what a positive equivalency finding is. If the ME's finding of equivalency is contrary to the evidence or has no basis in any evidence, then the ALJ is free to resolve the conflict by disregard the finding of equivalency. But I still stand by my understanding that 96-6p and the newer 17-2p are harmonious in requiring a medical consultant or medical expert's testimony to establish equivalency.
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