The Social Security Administration will publish in the Federal Register tomorrow three new Social Security Rulings. On cursory examination, Social Security Rulings 18-01p Determining the Established Onset Date (EOD) in Disability Claims and 18-02p Determining the Established Onset Date (EOD) in Blindness Claims are of little consequence.
The third may matter a little although it is an issue that rarely arises. From Social Security Ruling 18-3p, Failure to Follow Prescribed Treatment:
... We will not determine whether the individual failed to follow prescribed treatment if the treatment was prescribed only by a consultative examiner (CE), medical consultant (MC), psychological consultant (PC), medical expert (ME), or by a medical source during an evaluation conducted solely to determine eligibility to any State or Federal benefit. ...
Prescribed treatment does not include lifestyle modifications, such as dieting, exercise, or smoking cessation. ...
The following are examples of acceptable good cause reasons for not following prescribed treatment: ...
The individual’s fear of surgery is so intense that it is a contraindication to having the surgery. We require a written statement from an individual’s own medical source affirming that the individual’s intense fear of surgery is in fact a contraindication to having the surgery. We will not consider an individual’s refusal of surgery as good cause for failing to follow prescribed treatment if it is based on the individual’s assertion that success is not guaranteed or that the individual knows of someone else for whom the treatment was not successful. ...I don't see the point of asking a medical source to give information about their patient's fear about having surgery. Wouldn't it make more sense to rely directly upon the patient's own testimony about those fears? Isn't this an inherently subjective matter? Why rely upon statements from a physician who regards their patient's objections as ridiculous? This seems like it's searching for a way to hurt fearful people.
13 comments:
This SSR 18-3p, based on your reportage, is good for claimants in some ways. No longer can ALJs use failure to quit smoking, or failure to lose weight, as grounds for finding someone not credible... Or, nowadays, for not giving testimony that's consistent with the record as a whole.
The requiring written proof of fear of surgery, however, helps overcome the very common scenario in which the claimant says they were offered back surgery but declined because it was "50/50" or because "I know someone else who has the same surgery and it made them worse". Those statements are usually unprovable (and often the record never documents that a doctor recommended surgery in the first place). This makes it easier for the judge to disregard nebulous testimony in an otherwise weak pain case.
@6:33
You're confusing 16-3p factors to address supportability of the severity of a claimant's allegations versus the highly technical and rare denial of non-compliance under 404.1530 and 416.930. Nothing in this ruling keeps an ALJ from questioning the severity of a person's COPD if they keep smoking 2ppd and telling their doc they have no interest in quitting.
I am curious to if refusal of taking narcotic pain medications is considered noncompliance or not following prescribed treatment. If anyone knows the answer, that would be great. Thanks.
@9:12
Ouch! I seriously hope you are not an ALJ who has done that. If so you have misadjudicated cases due to your ignorance about the basic facts of COPD. COPD is permanent and incurable. Scar tissue on the lungs cannot heal. If a person stops smoking that does not make it better. It only keeps it from getting worse faster. Those facts are well established medical science. Please look into this before you do more harm.
@7:14,
Please show your work. It's easy to call something "well established medical science." It's much harder to explain away the other research citing tobacco smoke as the leading cause of COPD, and a trigger for COPD flareups.
COPD is permanent. But smoking makes the symptoms worse. Smoking triggers flareups and causes further progression of the disease. So, asking if the claimant continues to smoke is completely valid.
If a person stops smoking early in the COPD diagnosis, lung function can actually improve some.
@7:14
COPD may be permanent and incurable, but it can also get much, much worse and is almost always (almost) directly caused by smoking. A person that comes into a hearing with allegations of disabling COPD isn't really supporting their allegations when they continue to do the very thing that caused the impairment and will certainly make it worse.
Smoking is also an issue for bone growth/healing, and quitting is almost always a prerequisite for any surgery involving bone.
Highly unlikely that any doctor would document such a contraindication. To do so and then later perform the surgery would almost be medical malpractice.
"Highly unlikely that any doctor would document such a contraindication. To do so and then later perform the surgery would almost be medical malpractice."
You must not be familiar medical records. It is one of the more common things seen in a smoker's orthopedic/neurosurgeon records.
Okay 11:57: COPD is a progressive disease and there is no cure (National Institutes of Health) https://www.nhlbi.nih.gov/health-topics/copd.
"Once the scarring of the lungs occurs, unfortunately there is no way to reverse the process."
https://lunginstitute.com/blog/scarring-lungs-pulmonary-fibrosis/ (one of many sources confirming that as fact)
Thus, if you have a person with severe COPD, even if they never smoke again, the lung scarring causing their disability will still never medically improve. Yes, the smoking caused the COPD. No, it will not get better if they stop smoking. Given that, it is error to punish them for not stopping smoking. They are already being punished enough I would think. They will be extremely debilitated and likely die of the disease unless something else kills them first. By holding their smoking (likely a severe addiction by that point) against them you are not only failing to follow the rules, but you are pretty much kicking them while they are down.
12:55,
You left out this part of the NIH article you linked:
"If you have COPD, the most important step you can take is to quit smoking. Quitting can help prevent complications and slow the progression of the disease. You also should avoid exposure to the lung irritants mentioned above."
And this part:
"If you keep smoking, the damage will occur faster than if you stop smoking."
And this part:
"COPD has no cure yet. However, lifestyle changes and treatments can help you feel better, stay more active, and slow the progress of the disease."
And this part:
"Quitting smoking is the most important step you can take to treat COPD. Talk with your doctor about programs and products that can help you quit."
All of that appears to refute your claim that "No, it will not get better if they stop smoking." This is why it's important to show your work. The sources you're citing don't actually support your conclusions.
Ah, 3:17 you still don't get it. Of course quitting smoking is the most important thing you can do to treat COPD, we don't disagree on that. Everyone who has COPD should quit smoking if they can. Your blind spot is not seeing that "treatment" for COPD is only ever designed to slow the rate at which the condition gets worse.
Stopping smoking will improve COPD only compared to how much more quickly it would have gotten worse if you kept smoking. It slows the decline. It doesn't stop it or make it better. The damage that is done, is done. The legal question you have to decide in a disability claim is whether the medical condition would improve to the point of the person being able to perform SGA if the person followed the prescribed medical treatment. By definition, for a progressive and incurable disease the answer is no. You can only find otherwise if you don't understand what progressive and incurable means.
Coming from a family of smokers who quit smoking after developing serious COPD, I can attest that their lives and mobility improved on quitting smoking. Smoking can make cardiac problems worse and that complicates COPD. I decided to quit before it got me. It's difficult but doable. I'm sorry, but I have limited sympathy for those who claim they can't quit (and it's killing them), and I have reservations about representing anyone with disabling COPD if they don't start trying to quit.
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