Social Security has released FAQs on the new musculoskeletal Listings due to go into effect on Good Friday. Here is an excerpt:
Q4: What percent of decisions do adjudicators make using these revised rules?
A4: We decide claims involving musculoskeletal impairments primarily at step 5 of the sequential evaluation process where we consider a claimant’s residual functional capacity (RFC), age, education, and work experience. Specifically, we make 90 percent of allowances due to a musculoskeletal impairment using the medical-vocational rules at step 5 of the sequential evaluation process, which have not changed. The remaining 10 percent of the people who apply for disability benefits and are found disabled after an initial review due to a musculoskeletal impairment meet (or medically equal) a musculoskeletal disorders listing. We do not expect this to change because of these final rules.
Q5: How do these changes affect vulnerable populations?
A5: Our Office of the Chief Actuary’s (OCACT) primary conclusion for these rules are that the net effect of the new listings will be very small for both Social Security Disability Insurance (SSDI) and SSI. OCACT estimated that for SSI, there would be a very small net increase in SSI awards of roughly 180 annually. For SSDI, there would be a very small net reduction in disability awards of roughly 260 annually due to these listings.
OCACT estimated that implementation of these final rules will result in a net increase in SSI payments of $67 million over fiscal years 2021-2030, and a net reduction in scheduled Old-Age, Survivors, and Disability Insurance (OASDI) benefits of $263 million over the same period, assuming implementation in January 2021. Our Office of Budget, Finance, and Management estimates administrative savings of less than 15 work years and $2 million annually.
It is important to note that while the estimated effects of changes from allowance to denial and from denial to allowance are largely offsetting, the actual net effect for either program, SSDI or SSI, could potentially be either a small cost or a small saving.
Seriously, you're telling us these new Listings will make almost no difference in the number of claims approved? What was the point of the new Listings then? Social Security isn't claiming that these have anything to do with advances in medicine.
Why is the Chief Actuary's office trying to evaluate whether a change in the Listings will result in more or fewer claims being approved? It's outside their field of expertise. How is it even conceivable that these new Listings would increase the number of SSI claims approved, even in a small way? There's nothing to these new Listings other than a tightening of criteria across the board.
Why hasn't the Chief Actuary released their study? There were repeated questions about this on a conference call I listened to yesterday and Social Security refused to answer the question, even though the Chief Actuary, Steve Goss, was on the call. Their partial answer to another question suggested that the Chief Actuary's office may have only looked at claimants age 50 and older. The largest effect of these new Listings, however, will be on claimants under the age of 50. I guess the Actuary's projection is how they sold this to OMB and the Biden Administration, making it an important document. I think we ought to be able to see it.
I will say this. If they start being more reasonable in determining Residual Function Capacity (RFC) at the Initial and Reconsideration levels it would be possible to offset the negative effects of these new Listings. However, prior experience tells me to expect the exact opposite. Again, there was never any point to the Listings changes other than to deny more claimants. Any other reasons Social Security has given for these changes have been nothing more than window dressing.
21 comments:
This is the biggest bunch of Bull I have seen from SSA in a long time. The first thing that caught my eye is the alleged difference between number of cases paid verses reduced regarding SSI & SSDI case? How in the world is this even possible? There absolutely is NO musculoskeletal new listing that could cause this! The Regulations for determining Disability between the two are exactly the same! The only difference is SSI is based on very restrict eligibility based on poverty. SSDI eligibility pertains to quarters of coverage based on what one has paid into SSA.
I am curious as to whether POTUS Biden has already decided a firm he’s not going to try to stop these new Regulations from going into effect, or whether this has even been brought to his attention? Does anyone know? I am stunned Biden will not stop these new Regulations from going into effect because they will drastically result in many credible cases not being paid because they’re nearly impossible to meet. Has anyone specifically brought this to Biden’s attention? Someone must bring this to his attention immediately!
I am going to go out on a limb here and bet Biden has never been made aware of the true impact this is going to have on the most vulnerable among us. As I stated initially, this Bull SSA sent out is GARBAGE and has no relation in truth or fact to what the reality will be. I encourage everyone concerned make an effort to make sure this is brought to Biden’s attention immediately!
Can you provide the link to the original SSA post? I've been googling all morning and I can't find it.
Agreed. Your link doesn't work.
@10:13
My only guess as to SSDI vs SSI difference is some SSDI cases would disqualify due to DLI expiring.
Doing a training with my attorneys on this today. As stated, it looks like they are being more proactive in identifying more elements related to back problems. But it makes it more restrictive.
It is close to when they changed the diabetes listing and treating physician rule. It is all meant to deny more claimants.
I see a lawsuit or or two on the way. Or at least a bunch more appeals. Appeal this to the "ombudsman"? Nothing like a call to the media to fix SSA's issues. They apparently don't like that for some reason?
Does anyone know whether this has been brought to Biden’s attention? Has anyone reached out to someone in Biden’s inner circle at the White House to make sure he is aware of this and has 1-day left to stop it from going into effect? I haven’t heard it mentioned in the media either. I recommend several of us contact the White House in an effort to make sure he knows. I submitted an email earlier today through the White House website and used “Urgent” at the top of my remarks, but I have no idea how often these emails are reviewed. I am going to call White House switchboard tomorrow and leave messages with Executive Offices close to Biden, including Ron Klain, Chief of Staff.
Some high denier ALJ's liked to add their own additional, more stringent requirements to listings (e.g. every element of the listing must be met contemporaneously for a 12 month period). They got reversed and remanded by District Courts. As per the Agency's usual modus operandi, when they lose a lot in Federal Court, they change the rules to benefit them.
There is no logical reason why SSI approvals would go up while Title II denials would go down. They are the same rules for both programs.
For those under 50, really under 55, it would make the most difference since it is nearly impossible to get an to find someone disabled on a musculoskeletal basis, if the condition does nutmeat the listings.
We just had an unfavorable decision posted today...one day before the new listings go into effect. It's future dated for April 6. The listings are outcome determinative. It is so frustrating.
11:53 AM appeal that ish
oh don't worry, it will be. The most frustrating part is we tried to get it done earlier because her DLI was yesterday so now she can't file a new claim while a federal appeal is pending.
@1:47
Well that's horrifying. I suppose a notice could be sent to the ALJ involved, suggesting they take the decision back under HALLEX I-3-1-3.
Probably wouldn't go anywhere and it'll still go to appeal.
Without being able to access the FAQ, it’s difficult to say, but is it possible that the revised childhood listings could result in a net increase in awards? That would affect SSI but not SSDI, right?
@11:28AM
"Some high denier ALJ's liked to add their own additional, more stringent requirements to listings (e.g. every element of the listing must be met contemporaneously for a 12 month period). They got reversed and remanded by District Courts. As per the Agency's usual modus operandi, when they lose a lot in Federal Court, they change the rules to benefit them."
That's been the agency's official interpretation of listing 1.04 for nearly a decade. So the ALJ's aren't adding "their own additional, more stringent requirements." You just don't know the law. And to the extent any district courts outside the 4th circuit have been reversing decisions for that reason, they've been misapplying the law as well.
@7:18
We have one ALJ who regularly says effectively: "yeah the listing is satisfied, but the record doesn't support the degree of disability intended by Congress in enacting the Social Security Act, so denied."
Incredibly frustrating. As to the changes here, no it's not agency's official interpretation of listing 1.04. The listing previously allowed for either medical imaging showing compression of spinal nerve roots OR a number of symptoms which support compression of the spinal nerve roots. Now you need both.
@11:32
The prior listings required both medical imaging evidence of nerve root compression and every sign described in A (not symptoms). The word "with" means you needed both imaging and every one of the specific criteria under A. It was never either/or.
@1:40
11:32 here. Paragraph A of listing 1.04 did not previously require medical imaging of any kind. Paragraphs B and C did. The reason this change is significant is, medical imaging of actual nerve root impingement is very, very, very, rare. Usually, at best, you get a nerve conduction study showing loss of signal at a particular nerve, but more commonly you have clinical testing confirming the presence of dysfunction of the spinal nerve.
It appears SSA is updating the listing page on ssa.gov, and have yet to post the now obsolete listings in POMS, so here's the prior listing quoted from the google cache version for your review:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);
Redford v Colvin was only in one district but seems to be a major factor in how these listings were rewritten
@11:28AM
Explicit written policy requiring simultaneous presence of all 1.04A criteria has been around since at least 2015 with the publication of AR 15-1(4):
"Our policy is that listing 1.04A specifies a level of severity that is only met when all of the medical criteria listed in paragraph A are simultaneously present...Listing 1.04A uses the conjunction “and” when enumerating the medical criteria in order to establish that the entire set of criteria must be present at the same time on examination...In addition to meeting the severity requirement, in order to meet the duration requirement, the simultaneous presence of all of the medical criteria in paragraph A must continue, or be expected to continue, for a continuous period of at least 12 months."
Since the above policy was published in an AR, it's not surprising that many ALJs and representatives outside the 4th Circuit were unaware of its existence. The so-called "high denier" ALJs were actually correctly applying policy, which they are required to do.
@3:25
You can be the judge of whether this is merely revisionist history, but per the Federal Register response to comments, the agency says there was an implicit requirement for imaging for 1.04A:
"Finally, current 1.04A does not have an explicit medical imaging requirement. In full, 1.04A reads: ‘‘[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)’’. Despite not having an explicit medical imaging requirement, under current adjudication policy we would always consider the ‘‘evidence of nerve root compression’’ required in 1.04A to necessarily include medical imaging. Because of this, while 1.15 is more explicit than 1.04A in its requirements pertaining to medical imaging, it does not impose any new medical imaging requirements nor does it impose additional costs on applicants."
@3:39
11:28/3:25 here. I'm entirely aware the 1.04A criteria must all be satisfied and have never disputed that. Not sure why it appears that is being debated. Medical imaging is not anywhere even arguably referenced within paragraph A (as previously written). As to the Administration's response saying there was an implicit medical imaging requirement, it appears the language they are referring to is in the first section (preamble? Not sure what to call it.) of the listing. It's amusing that they are trying to suggest listing 1.04(A) and 1.15 both require medical imaging, yet only one actually says it does. For that matter, listing 1.04(B) and 1.04(C) require medical imaging, it just so happens that 1.04(A) left it out? Absurd. It was left out, probably, because the Administration at the time realizes nerve root compression is rarely verifiable with medical imaging, yet is objectively verifiable with clinical testing and other objective evidence. I'm not sure that could even qualify as revisionist history. Seems more akin to half-hearted, post hoc rationalizations that the Administration tries to argue in Court.
In any event, SSA is free to write the listings as they wish, but defending the changes as harmless is absurd.
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