The Fourth Circuit Court of Appeals issued an important decision yesterday in Shelley C. v. Commissioner of Social Security.
The Court found that summary statements assigning "little weight" to the opinion of the treating physician on the grounds that it "is on an issue reserved for the Commissioner and . . . is inconsistent with the medical evidence of record. [His] treatment notes do not indicate any significant symptoms that would render [Shelley C.] unable to perform basic work activities” does not comply with the agency's own regulations. An ALJ decision must identify the alleged inconsistencies between the treating physician's opinion and the medical evidence. The Court also held that the ALJ decision must explicitly show consideration of each of the six factors in 20 C.F.R.§404.1527(c). I think that in practical terms the Court held that merely using canned language won't cut it. If an ALJ gives "little weight" to a treating physician's opinion, the ALJ is going to have to explain why.
By the way, the Court didn't even deign to discuss the "opinion reserved to the Commissioner" language in the ALJ decision, which is about how much attention one should pay to makeweight language implying that Social Security has some right to summarily make decisions without regard to the evidence and without being held to account by anyone. Taken at face value, that arrogance would render judicial review meaningless.
The Court also held that the ALJ "could not dismiss Shelley C.’s subjective complaints based entirely upon the belief that they were not corroborated by the record’s medical evidence."
The Court did not remand the case. It reversed it and ordered payment of benefits. That is uncommon at the District Court level and quite rare at the Court of Appeals level. This was a bad day for Social Security's Office of General Counsel and for canned boilerplate in ALJ decisions. Show your work, ALJs.
As to opinions on issues reserved to the Commissioner, this decision is probably actually rather insignificant given the regulatory changes that went into effect in 2017.
ReplyDeleteAs someone who is a recipient of SSDI and had to go through Federal District Court, I wholeheartedly agree with the Court's ruling. The first ALJ denied my case because they stated my medical provider and my personal statements were only partially credible. The ALJ cherrypicked a few things in my record but didn't account the medical record in whole. I feel the ALJ should have brought in a medical expert to the hearing but that ALJ thought they knew more than the medical provider! That ALJ decision was overturned.
ReplyDeleteEveryone knows more than medical providers. Just look at the recent pandemic we went through.
Delete@9:13
ReplyDeleteNot really. The new regulations define an opinion on an issue reserved to the Commissioner as inherently not persuasive, whereas medical opinion evidence has to be considered, and the ALJ has to articulate as to how persuasive the opinion is. It's a massive due process issue, and violates the regs, for an ALJ to just throw out opinion evidence because if accepted it would direct a finding of disability.
I sure wish ALJs would read and follow SSR 16-3p and related Fed Ct. rulings about how they are supposed to adjudicate. When will they understand that all they need in order to believe every word out of a claimant's mouth (or written down by them) is an MDI and that the MDI could reasonably cause the reported symptoms. Not that the reported symptoms are a common symptom--just a reasonably possible one! An ALJ doesn't need one shred more of medical or other evidence to use the claimant's reports to determine their RFC and ultimately make a finding of disability!
ReplyDeleteA closer read of the SSR creates a strong, yet unstated, implied direction that an ALJ SHOULD believe every word out of a claimant's mouth re: their symptoms UNLESS there is other evidence of record contradictory to it. Actually contradictory to it, not the weak, disingenuous "inconsistencies" found so often in ALJ decisions used to poo poo medical opinions, claimant's statements, etc. and seen in this opinion's discussion of the ALJ decision.
SOOOOO many ALJs, even the careful, "good" ones who read every page of A, B, D, E, and F! and seemingly want to give claimants a fair shake, operate under the belief that a claimant's reports are just not worth a thing and cannot be relied upon unless and until they are supported by the weight of evidence (probably using the same "substantial evidence" standard they love to cite when crying about the AC or Fed Cts. overturning their decisions!). And that is just so far off from how the Agency and the Courts have clearly articulated they are to go about their adjudicating.
Maybe this one will hit hard and start to effect change among the ALJs.
@2:17: You’re wrong. Testimony is evidence, but ALJs are required to apply a preponderance of the evidence standard, and that burden falls on the claimant. So allegations plus an impairment that can cause them isn’t enough if other evidence contradicts the allegations. And that’s a good thing for claimants in the long run, as there wouldn’t be any money to pay the ones who need it under your peculiar interpretation of the law.
DeleteWhat's more interesting is the court's treatement of depression:
ReplyDeleteToday, we join our sister circuits’ growing conversation surrounding chronic
diseases, highlighting, in particular, the unique and subjective nature of chronic depression
....
In Arakas, we held that ALJs could not rely upon the absence of objective medical evidence to discredit “a claimant’s subjective complaints regarding symptoms of fibromyalgia or some other disease that does not produce such evidence.” 983 F.3d at 97 (emphasis added). Today, we hold that depression—particularly chronic depression—is one of those other diseases.
...
Stated differently, symptoms of MDD, like those of fibromyalgia, are “entirely subjective,” determined on a case-by-case basis. Arakas, 983 F.3d at 96 10 Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 187 [DSM-V] (5th ed. 2013). 34 (emphasis added). Ultimately, because of the unique and subjective nature of MDD, subjective statements from claimants “should be treated as evidence substantiating the claimant’s impairment.”
"Finally, while not dispositive, there is a prominent red herring in the ALJ's discussion 1332 *1332 of Dr. Lambert's opinion that should be identified so that it plays no role in subsequent proceedings. The ALJ stated that Dr. Lambert "opined that the claimant was not able to perform even sedentary work activity," and then went on to admonish "that some issues are not medical issues, but are administrative findings. An example of such an issue is what an individual's residual functional capacity [RFC] is. Treating source opinions on issues reserved to the Commissioner are never entitled to controlling weight or special significance[.]" App. Vol. 2 at 21. Dr. Lambert did not give any opinion on RFC. She found specific work-related functional limitations, and then the ALJ determined the consequences of those medical findings for purposes of RFC, i.e., that with those limitations, Mr. Krauser would not be able to perform sedentary work. That is precisely how the inquiry should proceed, with the treating physician performing her medical role and the ALJ left to his role as adjudicator. Of course the medical findings as to work-related limitations would, if accepted, impact the ALJ's determination of RFC — they always do, because that is what they are for — but that does not make the medical findings an impermissible opinion on RFC itself. If doctors could only give opinions on matters that could not affect RFC, medical opinions would be inherently useless in disability determinations." https://scholar.google.com/scholar_case?case=5441492234954111058&q=ssa+red+herring&hl=en&as_sdt=4,106,120
ReplyDeleteI don't get very excited about cases that interpret §404.1527. Those are cases filed before March 27, 2017. There are still a few of those around, mostly in the Federal Courts, but they are disappearing; then we will be left with only cases subject to § 404.1520c. Now Social Security likes to argue in Federal Courts that virtually all pro-claimant case law up this point has become null and void for claims filed on or after March 27, 2017. What we really need are some nice pro-claimant Appeals Court decisions for claimants filing applications on or after March 27, 2017.
ReplyDeleteAgreed, but almost all CDRs apply the prior rules, as well.
Delete@2:25 - I couldn't agree more. I would also like to add that in the instance of MDD and a plethora of other problems, that the diagnosis and treatment of Psychiatric Nurse Practitioner should be sufficient in proving a case. Psychiatrists' are, for one, expensive and are only generally interested in symptoms, not necessarily what causes/caused them, nor are they there to provide therapy. Not in all instances, of course. However, a Nurse Practitioners have a lot of the knowledge an MD has, but the heart of a nurse...but then again, nobody has ever accused SSA as "having a heart".
ReplyDeleteI think if we just have the agency transition over to a “self award” model, everything would be fine. The claimants know whether or not they are able to work, so just let them award their own cases and be done with it.
ReplyDeleteIf I were a rep, I would just tell my clients to allege fibro and depression or PTSD, headaches, malaise, chronic fatigue and all that good stuff - and then tell the ALJ to PROVE that they don't have the alleged conditions. THEN tell the ALJ to PROVE that the alleged symptoms are not disabling. To make the case airtight, have some provider submit a statement saying that your client can't work. The ALJ cannot prove a negative, so all such cases would be paid given what is essentially a reversal of the traditional burden of proof.
ReplyDeleteKarl Popper might be rolling in his grave, but you and your clients are getting paid!
@9:16 you wouldn't be a rep for very long were you to tell your clients what to allege. And you'd have to be a non-attorney rep, because your license to practice law would be swiftly revoked. Even for a non-attorney rep, SSA has their own ethical rules which would result in losing your ability to appear before the agency. ALJs know which reps are ethical. Shady reps don't last long.
ReplyDelete@11:23 Sorry, didn't meant to imply that I would actively encourage perjury, but through a process of thorough questioning the claimant might come to realize that he or she or they may have some of these difficult to disprove conditions - and then would make those the focus of the claim at hearing. Again, I think the ALJs/agency would not be able to prove a negative with respect to such claims and this would result in pay cases.
ReplyDelete@11:50: Sounds like you’d be the Sidney Powell or Rudy Giuliani of representatives. I really hope you’re not employed by the agency, as you clearly don’t understand the law. The burden is at all times upon the claimant to prove they are disabled. No one is required to prove a claimant isn’t disabled or prove any other negatives.
Delete@12:44 Had the same thought. Doesn't seem like they understand the requirements in proving an MDI at Step 2.
Delete11:50 PM Doesn't the burden of proof shift to SSA at Step 5? Or, is that, along with the "jobs" provided by the VE, just a myth?
DeleteMy experience has been that many ALJ decisions fail to comply with the new rules for weighing medical opinion evidence. I still see decisions that don't evaluate a material medical opinion at all, and ones that may reject an opinion, but then fail to articulate how they evaluated all the probative evidence on the supportability and consistency factors. Easy pickings for people doing Federal Court work.
ReplyDelete@1:29
ReplyDeleteWe've seen a few of those arguments, that somehow § 404.1520c abrogated decades of caselaw. Never seen a court actually buy that though, and in recent weeks, SSA appears to be walking back that stance and instead limiting the argument just to medical opinion issues. I still don't get it; nearly every circuit has caselaw predating even 404.1527. Pretty much every one, other than I think the first circuit? Regardless, what constitutes substantial evidence is a matter for the courts to determine, not SSA to define.
@9:16/11:50
The ALJ would laugh at you and dismiss at step 2. The burden of proof remains on the claimant, even with fibro and mental impairments.
Main reason Fibromyalgia is near impossible to get approved for is due to extremely poor treatment reports from specialists, who are not interested in treating persons with Fibro.(probably for good reason, b/c there is much they can do).
ReplyDeleteMental health impairments are different. Still very dependent on qualify of provider and treatment notes, but those providers do exist.
This salience of this ruling is that is prevents ALJ's from mechanically denying mental health claims by relying entirely on "normal" mental status exams. I have seen ALJ's completely ignore extremely detailed subjective complaints and descriptions of daily life (i.e. psychotic episdoes), and claim the person is not disabled because "some" of the mental status exams are normal. Many ALJs treat mental status exams as the mental health equivalent of a negative MRI result. They simply do not understand the utility or medical meaning of these exams. It is perfectly understandable that a claimant is NOT highly symptomatic in a therapeutic environment talking to a provider they trust.
ALJ's are public officials. They should be named in all Federal Court decisions, whether affirmations or remands/reversals.
ReplyDelete@5:01
ReplyDeleteThis is @1:29. I agree with you in that I don't see how SSA can claim that the new regulations do away with a long of history of case decisions that defined the weight to be given to treating physicians, when those decisions were never even based upon the old regulation in the first place. Regardless it doesn't stop the SSA from trying to make the argument. I am glad to hear that your experience has been that SSA is walking back that position some. I still would like to see some nice Court of Appeals decisions clearly telling SSA that they the new regulations don't allow SSA to treat however they want with the treating physician's opinions.
"@2:17: You’re wrong. Testimony is evidence, but ALJs are required to apply a preponderance of the evidence standard, and that burden falls on the claimant. So allegations plus an impairment that can cause them isn’t enough if other evidence contradicts the allegations. And that’s a good thing for claimants in the long run, as there wouldn’t be any money to pay the ones who need it under your peculiar interpretation of the law."
ReplyDeleteI said exactly what you said, what are you on about with "peculiar interpretation?" Go back and read it again. Unless and until there is actually contradictory evidence in the record, a claimant's subjective reports + an MDI(s) that could reasonably cause the alleged symptoms/limitations are plenty of evidence to support an RFC and a finding of disability by themselves. You don't need any other evidence to agree with those two things, you just need a lack of evidence actually contradictory to it (and even the presence of contradictory evidence isn't necessarily going to be preponderant evidence and force the ALJ to find contrary to the claimant's reports!).
Long story short, the only peculiar interpretation of 16-3p I've seen is the dominant ALJ-held one--that a claimant's reports cannot be relied upon much at all, and only really after there is a significant amount of medical evidence documenting precisely all the specific symptoms/functional limitations asserted by the claimant. That's what's peculiar.