She had been struggling to keep a job for months.
Southampton
resident Cheryl Sawyer had a degree from a two-year college and about 10
years of experience climbing the ranks of retail. She had worked
consistently throughout her adult life, priding herself on never being
dependent on anyone else.
But then, in 2013, pain began to take over her life, pain that would eventually be diagnosed as multiple sclerosis.
Sawyer
couldn’t stand for long. She couldn’t lift. She couldn’t bend. Soon,
she began having muscle spasms. After being let go from a job for the
fourth time, she decided to apply for Social Security Disability
Insurance benefits.
“I always enjoyed working, and I felt like I
was contributing,” Sawyer said. “I felt like I was doing something. Now
I’m trapped.”
Like millions of other people in the United States, Sawyer waded through the Social Security disability application process ...
Most applicants for SSDI are denied, and the few who are approved
wait on average 18 months to receive benefits after they apply for them.
And that was before a major rule change took effect in March in the way Social Security disability claims are processed ...
The change lets administrator law judges weigh evidence in an
applicant’s file however they see fit, instead of being forced to give
the most weight to the opinion of an applicant’s doctor. ...
The SSA states on its website that one reason for the change giving
judges more leeway in their rulings is a belief that it is inappropriate
for adjudicators to be forced to take a certain medical opinion as
true. ...
Critics of the new rule say a judge can now give more weight to other
evidence in an application, including the opinions of doctors or
consultants connected to SSA who meet an applicant once or sometimes
never at all. In addition, as part of the rule change, judges no longer
have to tell applicants how they weighed evidence when making their
decision....
In the last couple of years, it seemed like Social Security tried to publish any anti-claimant regulation that had floated around the agency in recent years. This one almost certainly dates back to the time that Michael Astrue was Commissioner. There were good reasons it hadn't been published before. I'd be willing to bet that some folks at Social Security warned that this one would backfire, turning a minor problem into a huge one. Just think about it. The federal courts interpret the Social Security Act in a certain way. The agency doesn't like this interpretation. Social Security doesn't try to take the issue to the Supreme Court. Instead, the agency tries to overrule the federal courts by adopting new regulations. How do you think that looks to a federal court? How likely is it that a federal court will meekly accept being overruled by an agency? If you say that of course they will, you aren't even trying to understand how federal judges think. My opinion is that this new rule was peak arrogance by Social Security and we know what often follows arrogance.
23 comments:
Haven't noticed much of a change in our practice. Judges will still pay the cases they want to pay and deny the others. A disabling statement by a treating physician didn't get in the way before in denying a case.
"Most applicants for SSDI are denied, and the few who are approved wait on average 18 months to receive benefits after they apply for them." A misleading statement. The few? If true how did almost 14,000,000 get on DIB benefits?
@ 10:07 AM I hope you haven't noticed a change yet from ALJs as the change in the regulations only applies to claims filed on or after March 27, 2017. I would assume all the decisions you are presently receiving from ALJs are for claims filed much earlier than that...say 2015.
My understanding was the goal of removing the requirement that treating medical opinions be given additional weight was a direct shot at the ninth circuit's credit-as-true rule. As I recall, SSA literally stated this in the rulemaking process.
The main issue with the change is, the credit-as-true rule has pretty much nothing to do with the treating physician being entitled to additional weight. You could just as easily argue it in applying to a CE report, or even a claimant's testimony, under the right circumstances. Additionally, the treating physician additional weight factor was based on 9th circuit caselaw which then SSA adopted nationally, so the treating physician rule still remains good law, regardless of SSA's regulatory changes.
This is just abysmal reporting. It completely mischaracterizes the new regulations. Judges are not free to weigh evidence as they see fit. Judges still have to explain how opinion evidence is weighed. It mischaracterizes the reasoning behind the regulatory changes.
It is also abysmal cutting and pasting by Mr. Hall, who allows the inference that Ms. Sawyer's claim was denied by an "administrator" law judge using the new rules when the article indicates her claim was approved. And was adjudicated under the prior rules. The changes in the regulations had no bearing on her claim.
Lol. Its kind of funny that you think this rule does anything practical. There were plenty of ways to get around the old regulation, because it was pretty open ended. The old reg allowed judges to gives treating docs less weight if their opinion was not supported by the evidence. So, in reality it lets judges give those opinions less weight, with the caveat that it must be supported by the evidence. Just like every other medical opinion.
If a judge wanted to rely on a treating doc under the old rule, it was a tiny bit easier in theory. However, in reality, the AC still sent cases back if the opinion was not well supported.
Also, the rule has certain areas that favor claimant's as it now considers NP's and PA's to be accepted medical sources.
10:08 it's a fact that the U.S. has not only one of the most strigent disability programs among developed nations but also is near the bottom in percentage of GDP spent on disability payments among the advanced industrialized nations. Again, you can't make your argument stand up under the cold hard statistical facts regarding any "disability crisis" in America. We are in the middle of Disability McCarthyism and right wing witch hunting on this issue.
I realize that the horse has left the barn, so to speak, in that the courts have already ruled countless times about the primacy of treating source opinions, but I still believe that this reasoning is flawed. If a TP is familiar with a claimant's condition, then they should receive extra weight re: diagnosis.
But, absent some sort of specialized education or training (which I'm not sure even exists), I don't see how or why a TP has more expertise than a DDS consultant (or even an ALJ, who actually questions the individual about their ADLs, etc.) in identifying an individual's limitations and capacities.
The new rule re weighing opinion evidence hasn't affected this woman's case at all because it's not in effect yet. And changing regulations is not "overruling" federal courts. Federal courts are there to interpret the regs. They can invalidate a reg they find unlawful, but changing the regs is not being nefarious. It's standard.
@7:40
In regard to non-examining DDS medical consultants, medical records are inherently limited as not everything observed is written down.
In regard to consultative examiners, a single examination is not sufficient to determine a claimant's impairments for any significant duration.
In regard to ALJs and ADLs, a claimant's ability to engage in ADLs may be relevant, but is not equivalent to an ability to perform in a work setting.
Treating physicians are given greater weight by the courts because they have examined a claimant multiple times over the course of the relevant time period. Additionally, treating physicians have access to their own treatment records. These factors direct additional weight be afforded to their opinions.
@8:45
I wouldn't characterize the change as "overruling" federal courts. I would characterize it as an attempt to avoid application of well-established precedent applied to all civil matters dating back even prior to the enactment of the Social Security Act.
"In regard to non-examining DDS medical consultants, medical records are inherently limited as not everything observed is written down.
...
Treating physicians are given greater weight by the courts because they have examined a claimant multiple times over the course of the relevant time period. Additionally, treating physicians have access to their own treatment records. These factors direct additional weight be afforded to their opinions."
So what you're saying is that a doctor with hundreds, if not thousands, of patients and who sees, on average, 30+ patients per day is going to remember items over a multi-year period that are not included in their records for this one specific patient to support their opinion? Makes perfect sense to me. Seems far more likely than the doctor simply asking their patient what their limitations are or having the patient fill out the form before they sign, which is pretty regularly documented in claimants' records by treating sources. Treating source opinions, like any other opinion, need to be supported by the records as a whole. If they are, great. If they're not, then not so great.
And let's not pretend doctors are completely unbiased and don't have some pecuniary interest in helping their patients get disability, whether in getting/keeping them insured on Medicaid/Medicare or keeping them as patients by making them happy and doing what they're asked.
@12:12
I have seen statements completed by a treating physician and then write "per report" or "per patient." I agree, these statements are not deserving of weight in regard to the treatment relationship as this was not the basis for the report. In my experience these statements are far from a majority of the medical opinions I've seen. I'm not familiar with your experience. If this is "regularly documented" in the records you review, that's disturbing.
In regard to recalling details outside their treatment notes, yes I believe it is reasonable to conclude that an exceptionally impaired individual, as disabled individuals are, could result in some enhanced memorability to treating physicians.
In regard to a treating physician being biased for their patient, I'm doubtful the average physician is willing to commit disability fraud in order to make their patients happy, and the vast majority of physicians in my state do not accept medicaid/medicare. If in a particular case there was evidence of a physician's bias, then reject the statement based on supportability.
@12:58
I would argue that it's also reasonable that the records of an exceptionally impaired individual would reflect such exceptional impairment since I have actually seen that, particularly in a mental impairment case. I would also question whether a 55+yo capable of light work is exceptionally impaired even though they could certainly still be disabled under the Regs.
You and I have had different experiences in treating source opinions. Or maybe there are just a large number of people in my area that are only capable of floating through life since they can never stand, walk, sit, lift, or use their extremities in an 8-hour workday (and never meaning the doc stating 0% of an 8-hour day). Conservatively, I would say that 80% of treating source statements I get have little to no support in the record beyond what the claimant tells them at the time of the statement, and frankly, if that's sufficient to support their MSS, then the MSS is unnecessary since we can just as easily adopt everything that we're told.
Again, when I get a reasonably supported and explained statement from a treating source, I always give it greater weight than the other opinions of record. It's just rare that I see those types of opinions. The new Regs aren't going to change how I evaluate treating source opinions, either, as I'll find supported opinions persuasive and unsupported opinions unpersuasive. As others have said, outside of the 9th Circuit, discrediting treating source statements that lack support in the record has not been difficult.
@2:09
I think the grid rules would be less of an issue if the DOT was either updated or replaced. I'm aware this would result in more denials, but as a rational human being I think it should be updated or replaced.
I agree that a well-supported opinion is rare. Frequently the explanation is left blank and the records do not suggest what the basis for the opinion is. My only point was that I rarely see the basis being the claimants' statements.
In regard to the ninth circuit, I think the issue is that decisions are focused on explaining the evidence supporting the decision...which is appropriate under the Act, but there is little effort made in rejecting the treating source's opinions which is the burden under 9th circuit precedent. While the Administration seems to disagree with the precedent, little is being done to change it. The arguments tend to be that the precedent is contrary to the Act and regulations, which is a fine argument at the Supreme Court and maybe even under if the case were being reheard en banc, but the decisions are never appealed so the arguments are never made.
12:58 How is it "disability fraud" for a doctor to sometimes guess (perhaps generously) the extent of their patient's limitations? And if that's the case then why would it be impossible for othr doctors or a judge to see the evidence differently? It just reveals the inherent nature of disability adjudication in that nobody actually ever knows what's going on inside the bodies/minds of other people. Thoughtful doctors would be the first to admit that.
The changes were in response to SSA losing a lot of Federal Court cases on medical opinion issues. That was clear to me after reading the ACUS reports that SSA sponsored to study the issue. Unfortunately, changes that would have improved the quality of decisions were largely overlooked in favor of dumbing down the rules to make it easier for poorly articulated decisions to survive judicial review.
I really think pain and mental illnesses are impossible to "prove." However, I also think it's impossible for SSA to "prove" anyone can do a particular job at step 5. At best, the VE can only give a wild a$$ guess at about someone's skills, etc. Can the ALJ really put someone's real limitations in his hypothetical question? At best, it's a theory of someone's limitations.
"In theory, there is no difference between theory and practice. In practice, there is." Yogi Berra
2 big changes in 2017 - 1. this dumb rule 2. the even more dumb 5-day evidence rule.
It's just more of a trend making it harder for claimants to get benefits. I also think someone in the SSA wants to stick it to SSD lawyers with the 5-day rule, meaning make their life more miserable for really no reason. Maybe it has something to do with the Eric Conn types and backlash against firms like Binder and Binder.
As stated above, I have seen reasonable ALJs (and they are out there) get around this 5-day rule and new treating physician rule. The bad (or low granting) ALJs latch on to these rules like they are the word of God. It gives them more ammunition to justify their bogus decisions.
On a slightly different note: I have heard they are again trying to cut hearing monitors in California. They are going to hire some big recruiting firm or temp agency to farm these workers out. Not sure if there is any truth to it.
7:40 here again.
My larger point is that disability is based on a flawed premise: absent an impairment meeting or equaling a listing, there's no medical expertise involved in assessing RFC. This applies, at a minimum, to most treating physicians; it might also apply to DDS consultants, unless they receive some sort of specialized training in functional assessment (if such training actually exists).
Consider SSA's treating opinion regulations: we'll give weight depending on whether the TP provides supporting findings. What findings "support" lifting 20 pounds vs, lifting 10 pounds? I understand that findings can support a specific diagnosis, but RFC? I don't see it.
But, somewhat understandably, members of Congress (mostly lawyers), Federal judges, and SSA prefer to retain the fiction that RFC is a medical determination, so doctors, to varying degrees, have expertise in assessing RFC.
@9:14
No one is sticking it to reps with the 5-day rule. If you can't cobble together a letter notifying SSA about outstanding evidence 5 business days before the hearing or get records into the file from 2009-2016 prior to 5 days before the hearing, perhaps you're in the wrong line of work. It's about as far from an onerous standard as you can get since a simply letter will satisfy 404.935(a). Now whether all judges apply it the same is a different matter, but I'm sure it's an easy appeal if they don't accept the letter as sufficient and decline to admit the records.
It's not just big firms that are causing problems, and to be fair, most of the local firms have had little difficulty complying with the rule even before it went into effect. But there are a number of firms/attorneys out there that routinely came into the hearing room and told me about how they diligently sought these records over the last two years, but the provider just isn't being reasonable. When did you make these diligent requests for the last two years of VA records, rep? "Three weeks ago, two weeks ago, and last week." I still have reps that notify me of outstanding records and document their attempts, and they don't start requesting records from treating providers until three weeks before the hearing. It's insane.
Frankly, the absolute worst thing that can happen in a case is for the case to go into POST. The most empathetic I will be is the day of the hearing when I actually get to meet the claimant and hear what they have to say. If I wait to make a decision 30-45 days into the future because there are outstanding records, that human connection is gone because I've already met with 50-60 other people by that time. I review those new records absent the claimant's testimony and make my decision at that time. Since the rule has gone into effect, however, my POST has dropped dramatically, and I am able to make decisions the day of the hearing and ask the claimant about all of the records during their hearing. It's been fantastic.
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