From Actions Needed by SSA to Ensure Disability Medical Consultants Are Properly Screened and Trained, a report by the Government Accountability Office:
SSA cannot be sure that the state agencies’ consultants are qualified and trained to appropriately inform decisions on disability claims. SSA policy requires state agencies to screen their consultants by checking them against a database of individuals barred from participating in federal programs. Also, SSA policy sets requirements for state agencies to provide initial and follow-up training. However, state agencies told us they do not always do so.
Of the 52 agencies:
• 14 said they did not consistently perform required checks on consultants either when hiring or annually, and
• Nine said they did not give consultants some element of required initial or refresher training.
The only requirement is that they not have a history of involvement in defrauding the federal government and they don't always enforce even that minimal standard? Is that how you run a quality program? Are opinions from such consultants entitled to deference?
27 comments:
They look at some records (often a miniscule portion of what is at the hearing level), and then without ever seeing the claimant they issue an RFC to which ALJs frequently give great weight over that of the long-time treating physician. Of course its easy for these consultants to say these claimants aren't disabled. They never saw their faces so they can't picture them living on the street after being denied benefits. Easy to say that a person with a cane can do medium work, when you don't have to say it to that person's face. It's a very convenient system where the judge and jury never has to see the eyes of the person wrongly being ruled to be a phony.
goes both ways, treating sources have an economic incentive to write down what you say or sign what you put in front of them. You don't say what the patient wants to say, patient can leave and go to another doctor. There's a slew of available providers in most of the country. Plus there's no disincentive for the provider to say what you want them to say or sign what you put in front of them, if it's not true there's no consequence. Providers are nice people they want happy patients/customers.
This explains alot ...
Litigating the credentials of the DDS consultant is normally beyond the scope of the hearing if the ALJs are being pushed into 45-minute time slots. And will become impossible if Gruber and Neagle get their way and replace ALJs with AAJs (Appeals Council staff attorneys). This speaks to the need for government representation at SSD hearings. If there's a motion against the DDS physician, the government attorney can brief and defend, or request an ME for the hearing.
SSD is entitled to have its own expert weigh in on disability -- a family doctor is rarely a credible source for weighing RFC.
I skimmed the report and was disturbed by the mention that some DDSs think its acceptable for the doctors to review 6 cases per hour. That's 10 minutes per case not accounting for distractions. So, the doctor who determines whether a claimant gets the benefits that they desperately needs spends less than 10 minutes looking at their case. Unfortunately, that issue should have been the focus of the GAO investigation but, apparently, it was not. As far as screening the consultants, we have one here who had her license revoked twice and now has a license that restricts her to only working for social security. She works for DDS inanother state also. I know of one quality reviewer who was disciplined for Medicaid fraud in California. I don't know if he is inthe SAMS database but he certainly should not be involved in any program involving government benefits. This whole system is just whacked (for lack of a better word).
@9:05. Do you really believe all of these treating providers are willing to lie for their patients. Its beeen my experience that if a doctor doesn't think the patient is disabled, they will not provide an opinion. I've seen much, much more dishonesty from DDS consultants than from treating doctors. If you had a serious health condition and might need surgery, would you want the opinion of a doctor who has treated and examined you or would you accept the opinion of a doctor who spent less than 10 minutes reviewing your records? This mistrust of treating physicians seems pervasive throughout the agency even though there is little logic behind it. Besides, if a DDS consultant or ALJ thinks the treating providers opinion is wrong, why don't they ever call them up and question them about it. That would be one way to figure out if they are just trying to be "nice." But, apparently, the agency does not feel these claimants cases are worth a few extra minutes to do that. That might result in it taking more than 10 minutes to review a case and we ccouldn't have that, could we?
@9:40 "SSD is entitled to have its own expert weigh in on disability -- a family doctor is rarely a credible source for weighing RFC."
I certainly hope you are not an ALJ. Here is what the regulation said just a few years ago:
Generally, we give more weight to medical opinions from your treating sources, since these sources are likely to be medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s_ and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. 20 C.FR. 1527(c)(2)
This was sound logic. The reason the agency changed it was because the courts kept remanding cases because the ALJs were ignoring this sound logic. So, instead of requiring the ALJs to comply with the regulation, the agency simply changed the regulation. However, considering that the agency still requires that CEs be peformed by treating physicians if available, apparently the agency still sees some merit in this logic. Furthermore, the treating physician rule was first developed by the courts and is still the law in some circuits. Thus, the courts first recognized the logic of this position. Your contention that the treating source is rarely credible and that the agency should instead rely on consultants who are paid by an agency that seeks to deny as many claims as possible and who spend less thant 10 minutes reviewing the case is absurd. This shows that you have a significant bias that clouds your judgment. So, again, I hope you are not an ALJ.
The major point is being missed. Any opinion has to be supported by objective evidence if it is to be adopted by the ALJ and that goes for both DDS docs and treating docs.
Hmmm. Not in my neighborhood. Maybe it depends greatly on what you have. ALS...Nobody challenges you. Mental Illness? Muscular Skeletal? If money is a doctor's concern, they are more concerned about lawsuits and the government than one or two patients. Many have big egos and think they can fix you...when the pills/exercises/treatments don't work...it must be YOU! I speak from experience...WAY too much experience. The squeaky wheel doesn't get the grease...it gets a referral to someone else. Most doctors don't need more patients. Pesky people wanting help, forms filled out..."Let me send you here...maybe they will help you?"
Maybe a doctor you've seen for 30 years, in a small town where EVERYONE knows what your going through...
Why is anyone shocked that there is little screening for these “doctors”? If there an ALJ alive that would trust one of these “doctors “ to treat their hides teddy bears? But these same docs can give well supported opinions that the 55 year old construction worker, status post 4 back surgeries can return to medium work
10:53, you sound angry and convinced that the agency is out to punish claimants, so I won't press the issue too hard. But you're distorting the facts when you say "The reason the agency changed it was because the courts kept remanding cases because the ALJs were ignoring this sound logic." The truth is courts were applying the treating physician rule inconsistently.
Some courts properly remanded because ALJs didn't give sufficient reasons or acknowledge the treatment relationship, while other courts went further and ignored the regulation's requirement that the opinions be well supported and not inconsistent with other substantial evidence. There are actually cases holding that ALJs can't find that a treating physician's opinion lacks support because the doctor knows best. That sounds great for claimants and their representatives, but it's also inconsistent with the regulations.
There's also the fact that a lot has changed over the years, and many people are treated by impersonal clinics with a revolving door of practitioners. If the "family doctor" sees the patient once and then passes off his care to other PACs or NPs, can we really assume that the family doctor has the "detailed longitudinal picture" that you mention? The line between DDS consultants and treating providers is blurrier than ever.
@1:43
The treating physician rule is applicable by a reviewing Court. It was never meant to be an interpretation of regulation. The fact that SSA attempted to avoid getting remanded by Courts due to rejecting out of hand treating opinion evidence was laudable.
On a related note, the entire focus of the new regs are to have ALJs not disclose their reasoning, in direct violation of basic administrative law principles (for example Chenery Doctrine). In theory, the ALJ is supposed to still consider the treatment relationship (but giving greater weight, undisclosed weight, to the supportability and consistency factors). I've yet to hear any justification for the secrecy and am genuinely curious how a Court is supposed to affirm an ALJ's rationale, when by the regulations' own terms, the ALJ is not supposed to disclose much of it.
The problem with the old treating physician rule was that the nice old family doctor would write down all sorts of function limits but none of the treatment note provided either subjective or objective support for those limits
I've had several ME's that testify at hearings with a history of professional discipline, so this isn't surprising at all.
The DDD consultants are the physicians who routinely find that women over the age of 60 are capable of medium work (lifting 50 pounds). They often come up with an RFC of convenience, cases involving people over 55 also capable of medium work or everyone over 50 can perform light work.
I routinely research the DDD physicians. There is one consultant who was a surgeon. He was suspended from performing surgery by the State Medical Board after he maimed and killed a few patients. When I see his name on the Disability Determination Explanation I file an objection to that document. I have also raised that same objection in Federal Court. While someone with those "credentials" is qualified to consult for DDD my objection certainly undermines the credibility of the physician.
A few years ago DDD attempted to counter my objections by instructing the consultants to only use initials. I then objected to all of the Disability Determinations. I also argued that the ALJs could not give "great weight" to the consultants because we did not know who they were or if they were even a physician. It took about a year for the full names to come back on the forms.
I had an ME discount the opinions of a board-certified rheumatologist because her records said that claimant had 18/18 FM tender points and he had never seen that before... I see it all the time!
In many, many decisions, I see conclusory statements that the treating physicians opinion is not consistent with the medical records but no explanation. The fact is, more often than not, it is entirely consistent. I think some ALJs start with the opinions of the DDS alleged doctors and reject anything inconsistent with those opinions. Of course, often there is little to no analisys as to why the DDS opinions are "persuasive." I think adding the term "persuasive" to the regulation led some ALJs to believe that determination is simply up their whim. However, the regs stil require analysis of supportability and consistency but I rarely see this provided in the decisions.
Another thing frequently seen in decisions is the citing of normal findings, such as mental status exams, while ignoring significant issues in the same record. This seems very dishonest to me but appears to be standard agency practice.
CE's are a joke. Been there, done that. They're rude, crude, and push you outta their office as quick as possible, and the DDS still took the recommendation of my own physician. What was the point of making me do that? On another note. I don't know where they find these doctors..."Shady Bob's Used Doctors"? I've never been in such a disgusting medical office building before, or after that. It was seriously bad. Rusty, dripping sinks, 70's medical equipment (x-ray machine and such) in 70's paneled rooms with stained carpet. It was seriously not something I ever want to do again. The bedside manner of the doctor was um... "Soviet" to try to explain it accurately.
I think there are people convicted of major crimes on far less supporting evidence than there is in many ALJ denials. Part of the problem is that an ALJ cab justify a denial on "substantial evidence," which can be little to nothing more than just claiming "the claimant lacks credibility." Based on what? Sometimes I think that the ALJs, doctors, lawyers, DDS, politicians and the general public and even our families...Have no real concept of what some of go through. I just think most of you have no clue. Because, if you did, we wouldn't have to go through all this nonsense!
If a treating source gives the actual evidence or findings SSA requires.....ROM, reflexes, motor strength, x-rays, PFS etc then there would be no need to get CEs
Degree of accountability is a big factor. If a treating physician gives patients bad advice, they can be liable for the damage caused and their malpractice insurance premiums can skyrocket. If a CE gives an equally bad opinion they have no legal liability, a fact they are well aware of. The treating physician has a strong financial incentive to be careful and accurate. CEs have no such financial incentive. Good CEs with professionalism will still try to do a good job. Too many don't though and it is a sad fact of human nature that many will be lazy if they don't face accountability for the quality of their work. Good stewardship of the disability program requires weeding the bad ones out.
@11:22
I recall an ALJ who found fibromyalgia to not exist because the physician found 18/18 tenderpoints, which the ALJ interpreted as meaning even the "test points" which aren't supposed to show positive, unless malingering.
WHAT TEST POINTS?!!?!? THAT IS NOT A THING!
@10:56. Just another ALJ trying to play doctor. Happens all the time. You know what they say about little knowledge being dangerous. I recently did some research on migraines because I noticed decisions always seem to emphasize the lack of findings on the MRI. From what I found, MRIs are only done to rule out tumors and are found in a miniscule number of migraine cases. Migraines are diagnosed based on the symptoms which are objective signs under the regulations. Yet, how many cases are being denied because these doctor ALJs think the fact that nothing is shown on the MRI means something?
10:56 AM. Tender Points are known spots on the body where people with Fibromyalgia can experience sharp pain when pressed. It use to be the key "diagnostic tool." But, you have to press in the exact spot to get the sharp pain. Close isn't good enough. It varies slightly from patient to patient. If the examiner hunts for the sport, they can usually find them. But, a half hearted attempt is likely to find less than 11 of the 18 required for the old diagnosis. So, really what you may be measuring is the skill and patience of the examiner.
I have run into several state agency decisions discounting a favorable CE as an “overestimate” to the claimant’s limitations. The next sentence says it is not entitled to any weight because it was a one-time examination. Are not all CE exams a “one-time” examination? I guess it only counts when it is favorable to the claimant.
8:27 AM. I think this shows what the entire purpose of the CE exam and the ME reports are for...to give DDS and ALJs an excuse to deny. Maybe there should be controls...like slipping in identical records...one real one dummy two months later (or before) with the names and ages changed. Frankly, I think all information about the age of the claimant should be redacted in the copies they get. They should have to make an opinion on the records alone. That might combat the urge to upgrade the claimants' abilities as they pass certain milestones.
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