EM On Musculoskeletal Disorders

     The Social Security Administration has issued an Emergency Message titled Additional Guidance for Evaluating Evidence in Cases Involving the Musculoskeletal Disorders Listings. It's designed to convey the news of the Temporary Final Rule on "close proximity of time" published recently in the Federal Register but it also addresses the need for assistive devices, such as a cane or walker or motorized wheelchair.

"Close Proximity Of Time" Extension Made Permanent

     From a notice that Social Security has scheduled for publication in the Federal Register:

On July 23, 2021, we issued a temporary final rule (TFR) with request for comments to lengthen the “close proximity of time” standard in the Listing of Impairments (the listings) for musculoskeletal disorders because the COVID-19 national public health emergency (PHE) caused many individuals to experience barriers that prevented them from timely accessing in-person healthcare. That prior TFR is effective until six months after the effective date of a determination by the Secretary of Health and Human Services (HHS) that a PHE resulting from the COVID-19 pandemic no longer exists. The Secretary of HHS made that determination, and the COVID-19 national PHE ended on May 11, 2023. However, healthcare practices in a post-PHE world are still evolving. We are therefore issuing this new TFR to extend the flexibility provided by the prior TFR until May 11, 2025, so we can evaluate changes in healthcare practices and determine the proper “close proximity of time” standard for the musculoskeletal disorders listings. ...

    I'm not going to try to explain this other than to say that it's modestly good news for disability claimants with orthopedic problems -- a slight reduction in harshness is how I would put it.

The Breath Of The Dead

     I remain distressed that Social Security's new Listings for liver disease remains as brutal as ever. One feature of dealing with clients with failing livers is officially called fetor hepaticus. It's sometimes called "breath of the dead." It's an extremely disturbing smell on the breath of some people with failing livers. I wonder whether any of those who drafted these Listings have ever smelled fetor hepaticus. The idea that anyone whose liver disease has progressed to this point can work seems preposterous once you smell it yet such patients are often denied Social Security disability benefits. It's not the smell that disables them. It's just obvious that anyone with that smell isn't long for this world. I can't emphasize too much just how viscerally disturbing fetor hepaticus is. It smells as if the person has already started dying on the inside. Why are patients in this condition being denied?

New Digestive And Skin Disorders Listings

     The Social Security Administration will publish final rules to revise its digestive and skin disorders Listings in the Federal Register tomorrow. It runs to 159 pages in the PDF version! (It will be fewer pages in the actual Federal Register since that's three columns of small print.)

    One noticeable part is that they've changed the formula for determining SSA CLD, which has been used to determine whether claimants meet the Listing for chronic liver disease (CLD). It used to be exactly the same as the MELD formula used to determine whether individuals with chronic liver disease can get a liver transplant. Now it's just mathematically the same. I've speculated that the agency used the name "SSA CLD" to obscure the fact that it's literally easier to get a liver transplant than it is to meet the Listing for chronic liver disease. I'll speculate that they're going a step further to further obscure just how impossible it is to meet the Listing. They do note in the materials that a MELD or SSA CLD score that meets the Listing means that the patient has a 19.6% chance of dying in the next three months. They think that's a justification for their standard. I was not under the impression that the definition of disability required a person's condition to be quickly fatal.

    I also note that the new Listings make it impossible for claimants to meet the Listings for hidradenitis suppurtiva. Never heard of hidradenitis suppurtiva? Trust me, you don't want it. It's one of the most commonly disabling skin conditions.  For that matter, it appears that it will now be impossible to meet the Listings for psoriasis. For most people with psoriasis, the disease is annoying and unpleasant but manageable but that's not the case for a small percentage of people with psoriasis.

Action On Listings

     Action on new or amended regulations at Social Security has been almost non-existent at Social Security for years so it was a surprise to me to see that something had finally happened.  The agency has received approval for new Listings for Digestive and Skin Disorders. Expect to see them in the Federal Register soon.

    Social Security now has zero new or amended regulations pending approval at the Office of Management and Budget. I don't remember that happening before.

Some Listings Will Become Harder To Meet

     Social Security's musculoskeletal Listings will become harder to meet this November. As written many of these Listings require that all relevant criteria be present simultaneously or "within a close proximity of time." Because of the Covid-19 pandemic this became hard to prove since access to healthcare, particularly in person health care, became more difficult. In July 2021 Social Security adopted a temporary rule loosening these requirements until "6 months after the effective date of a determination by the Secretary of Health and Human Services under section 319 of the Public Health Service Act, 42 U.S.C. 247d, that the national public health emergency resulting from the COVID-19 pandemic no longer exists." Newspapers are reporting that the President plans to issue an order ending the public health emergency on May 11, 2023. Thus, the Listings will become harder to meet as of Veterans Day in November. 

    The musculoskeletal Listings have been too hard to meet even with the temporary rule in place suspending some of their worst aspects. They will become even more harsh. They need re-examination.

Covid And The Musculoskeletal Listings

     The Department of Health and Human Services (DHHS) has once again extended the declaration of public health emergency due to Covid-19. The earliest this could be ended is October 13, 2022.

    So, how is this Social Security News? The Musculoskeletal Listings, an important part of disability determination at Social Security, contain a provision (1.00.C.7.a.) making it slightly less difficult to be determined disabled during the declared public health emergency. The Listings are still harsh. This just makes them slightly less harsh.

    In my opinion, we should never go back to the pre-Covid standard.

Proposed New Cardiac Listings

    The Social Security Administration has published proposed new Cardiovascular Listings in the Federal Register today. This is only a proposal. Comments may be made until August 29, 2022.

Social Security Changed One Of Its Listings But Kept It Secret

     From a new issuance in Social Security's POMS manual:

The Office of Disability Policy (ODP) is updating its instructions in DI 24555.005 for genitourinary disorders listing 6.05,Chronic kidney disease, with impairment of kidney function. The revised POMS advises adjudicators to stop using the African American estimated glomerular filtration rate (eGFR) and use the unadjusted eGFR for all claimants regardless of race. This conforms with the National Kidney Foundation (NKF) and American Society of Nephrology’s (ASN) recent recommendation to exclude race in eGFR calculation and reporting. It also aligns with the agency’s initiative to promote consistent and equitable disability determinations for African American claimants whose impairments would satisfy the criteria in listing 6.05A3 if adjudicators use the unadjusted eGFR to evaluate their claims.

DI 24555.005 includes the same instructions provided in EM-22012 SEN, Guidance on Using the Estimated Glomerular Filtration Rate (eGFR) in Cases Involving Genitourinary Disorders. Upon publication of the POMS, we will archive EM-22012 SEN.

    Note that the link to EM-22012-SEN doesn't work if you're not on Social Security's network. The SEN part may be there because this was deemed "Sensitive." In any case, it was not divulged to the public at the time these new instructions were issued to agency staff. I don't even know when the staff was told about this.

    This is basic stuff. It determines who wins and who loses. Why was this kept secret from claimants and their attorneys? We have an obvious need to know.

    And what about African-Americans who were denied in the past under an arguably racist policy?

Listings Extended

      Social Security has announced that it is extending its Listings for Special Senses and Speech, Hematological Disorders, and Congenital Disorders That Affect Multiple Body Systems without change.

Temporary Change To MS Listings

      From a temporary final rule that Social Security is publishing in the Federal Register tomorrow:

Since the outset of the COVID-19 national public health emergency, many individuals have experienced barriers that prevent them from timely accessing healthcare. In response to those barriers, we are issuing this rule to temporarily revise our requirement in the Listing of Impairments (listings) that, for purposes of applying several of our musculoskeletal disorder listings, all relevant medical criteria be present simultaneously or “within a close proximity of time,” which we define as being “within a consecutive 4-month period.” While this rule is in effect, we will find that the evidence of a musculoskeletal disorder is present “within a close proximity of time” if the available evidence establishes such a condition within a consecutive 12-month period. We expect that this temporary change to our rules will allow us to make findings of disability in appropriate cases in which individuals have experienced barriers to access to healthcare because of the COVID-19 national public health emergency.

That Study That Supposedly Shows The New Musculoskeletal Listings Will Have Little Net Effect Was Done Four Years Ago And Wasn't Done By The Actuary

      Social Security's Chief Actuary has released a very brief memo on its finding that the new musculoskeletal Listings will have almost no net effect upon the number of disability claims approved. I don't understand why it took so long to release this. The memo includes this paragraph: 

To assist in estimating the effects of the final rule, SSA conducted a case study in 2017covering approximately 1,400 initial DDS-level decisions made in 2015. In comparing determinations of these sample cases using the prior criteria and new criteria, a small number of determinations were expected to change from allowance to denial under the new rule, primarily because their case files do not contain all of the medical evidence required under the new rule.

     So it's not really the Chief Actuary's office that did this study. It was actually done by the people who proposed these new Listings and it was done based upon an earlier version of the Listings rather than the final version.

     Why is the Chief Actuary putting this out as if his office did it and as if it was based upon the actual Listings adopted?  I know why Social Security management would want this coming from the Chief Actuary. He has credibility. Current management doesn't. I don't know why he would put his name on a study his office didn't do. I don't think this is going to age well. 

     And, oh yeah, I'd like to see the actual study itself instead of some brief summary of it.

I Wish There Had Been More Of This

      Nancy Altman, the President of Social Security Works and a member of the Social Security Advisory Board (SSAB), writes for The Hill on the harsh new musculoskeletal Listings that went into effect on April 2.  I wish there had been far more criticism of these rules, enough to have stopped them from going into effect. They just seem to technical to most people. That word "musculoskeletal" isn't in most people's vocabulary.

     By the way, there's still not been a public release of the study that supposedly showed that the new Listings won't affect the number of disability claims being released. I'd really like to see that.

EM On New Musculoskeletal Listings

      Social Security has issued an Emergency Message on the new musculoskeletal Listings that went into effect last Friday. I would not say that these soften the blow much. 

     The new EM does speak to a question I had. What about claimants who use electric wheelchairs operated with one hand, as in Stephen Hawking (although his problem wasn't musculoskeletal). Since these wheelchairs don't require both hands to operate, can these claimants meet the Listings? The answer is yes, assuming the claimant couldn't get around with just one cane, for instance. Yes, these Listings are so bad that we need an answer to a question about whether someone as impaired as Stephen Hawking would meet them. 

     These Listings don't merely require that a claimant be unable to work. They require that it be immediately obvious to others that a claimant can't work. I guess people like Andrew Saul heard enough complaints from people about a neighbor or acquaintance who couldn't be "truly" disabled based solely upon limited lay observation. They wanted to make sure that disability is obvious and undeniable.

Congressman Seeks To Overturn Rule Allowing AAJ Hearings

      From a press release:

Today, House Ways and Means Social Security Subcommittee Chairman John B. Larson (D-CT) and Worker and Family Support Subcommittee Chairman Danny K. Davis (D IL) introduced a Congressional Review Act resolution to overturn a harmful rule adopted by the Trump Administration. The rule, “Hearings Held by Administrative Appeals Judges of the Appeals Council” (85 Fed. Reg. 73138), changes the Social Security Administration’s (SSA) appeals hearings in ways that compromise claimants’ and beneficiaries’ due process, potentially limit their access to their earned benefits, and contradict the congressional intent of the law governing such proceedings. Specifically, the rule allows SSA to put unqualified agency attorneys in charge of appeals hearings, rather than independent Administrative Law Judges. ...

     I wish he'd try to undo the musculoskeletal Listings changes instead. The AAJ hearings seem pretty unlikely anyway. The Listings changes went into full effect today.

FAQs On New Musculoskeletal Listings

      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.

One Week Until New Musculoskeletal Listings Take Effect

      Unless something happens in the meantime to delay or prevent it, Social Security's new musculoskeletal Listings go into effect a week from today. If you haven't read them, they're more extreme than you can probably imagine. I've reproduced the Listings changes below -- just the Listings without the lengthy preambles. Judge for yourself. My opinion is that the public isn't going to be happy with these and that the current Presidential Administration will be blamed, which is exactly what was planned, I imagine. These certainly weren't rushed out while there was a Republican President. Click on each thumbnail to view full size.

New Musculoskeletal Listings To Go Into Effect In Less Than A Month Unless Blocked

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. The Biden Administration could delay implementation or even kill these changes altogether. However, there has been no sign so far of anything that would derail the new Listings. 

     I fear that these changes now seems too much like mere housekeeping. I don't think they will seem that way if implemented.

     I'm curious. Has Social Security been training staff on the new musculoskeletal Listings?

Could Musculoskeletal Listing Changes Be Reconsidered?

      The harsh new musculoskeletal Listings are scheduled to go into effect on April 2. However, the change of Administration could delay implementation or even kill these changes altogether. Soon after taking office, Biden's Chief of Staff sent a memorandum to agency heads giving them this directive:

... With respect to rules that have been published in the Federal Register, or rules that have been issued in any manner, but have not taken effect, consider postponing the rules’ effective dates for 60 days from the date of this memorandum ... for the purpose of reviewing any questions of fact, law, and policy the rules may raise.  For rules postponed in this manner, during the 60-day period, where appropriate and consistent with applicable law, consider opening a 30-day comment period to allow interested parties to provide comments about issues of fact, law, and policy raised by those rules, and consider pending petitions for reconsideration involving such rules.  As appropriate and consistent with applicable law, and where necessary to continue to review these questions of fact, law, and policy, consider further delaying, or publishing for notice and comment proposed rules further delaying, such rules beyond the 60-day period.  Following the 60-day delay in effective date:

a. for those rules that raise no substantial questions of fact, law, or policy, no further action needs to be taken; and 

b. for those rules that raise substantial questions of fact, law, or policy, agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director. ...

     The musculoskeletal Listings certainly raise substantial questions of policy, if not fact. Even though their effective date is more than 60 days after this memo, it would certainly seem that they should be subject to additional review and that there should be a new comment period. I would expect that there will be "requests for reconsideration" of the Listings. These new musculoskeletal Listings are not mere housekeeping. They were and remain a highly controversial attack on disability claimants.

     By the way, those proposed regulations that would have increased the number of continuing disability review and that would have modified the grid regulations may not have been officially withdrawn yet but they're dead.

Overruling A Court With The Stroke Of A Pen

      From a notice of rescission of acquiescence published in the Federal Register today:

... On September 23, 2015, we published AR [Acquiescence Ruling] 15-1(4) (80 FR 57418) to reflect the holding in Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). In Radford, the United States Court of Appeals for the Fourth Circuit held that listing 1.04A required a claimant to show only “that each of the symptoms are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months,” 734 F.3d at 294. Contrary to our policy that the requisite level of severity requires the simultaneous presence of all the medical criteria in paragraph A, the Court of Appeals held that a claimant need not show that each criterion was present simultaneously or in particularly close proximity. 

This rescission notice is the result of publication of the final rule, “Revised Medical Criteria for Evaluating Musculoskeletal Disorders,” published on December 3, 2020 at 85 FR 78164.